Let’s start by defining each:

PWFA: Requires covered employers to provide reasonable accommodations for an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship.

ADA: Prohibits discrimination against individuals with disabilities in various areas of life. Beyond that, Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities, except when such accommodation would cause an undue hardship.

There are a few similarities between the two laws:

• • both programs require employers with 15 or more employees to adhere to these programs
  • both require employers to provide reasonable accommodations in certain situations
  • both advise that each situation be looked at on a case-by-case basis. The employer needs to analyze the individual circumstances of the request to determine whether and how to provide accommodation(s).
  • both, and specifically under the PWFA, state the employer should consider other reasonable accommodation options before exploring leave of absence as an accommodation
  • both state that leave of absence may be a reasonable accommodation, including reduced schedule or intermittent leave.
  • both define “undue hardship” relatively the same

In many cases, a pregnant applicant or employee can be covered by the ADA and PWFA, but that is not always the case. Which brings us to …

Key differences between the PWFA and ADA:

1. Who is eligible?

PWFA: The PWFA protects all employees (or applicants) who work for a covered employer and have known limitations related to pregnancy, childbirth, or related medical conditions.

ADA: The ADA protects qualified individuals with disabilities, which is any person who has a physical or mental impairment that substantially limits major life activities, has a record of such an impairment, or is regarded as having such an impairment.

2. Should the eligible employee be able to handle their essential job function for an accommodation to be instituted?

PWFA: Not necessarily. In limited situations under the PWFA, an employee may be eligible for accommodation even when they are unable to perform the essential functions. There are three requirements in this situation:

a. inability to perform the essential functions must be temporary

b. essential functions can be performed in the near future

c. the inability to perform the essential functions can be reasonably accommodated

The PWFA provides additional information and definitions regarding those terms. For example, temporary is defined as “lasting for a limited time, not permanent,” and the near future refers to a time period within 40 weeks, the typical duration of a pregnancy.

ADA: Yes. Under the ADA, the employee must be able to perform the essential functions of the position. An employer is not required to eliminate or remove essential functions as part of the accommodation.

3. What types of medical conditions or disabilities must be accommodated?

PWFA: The PWFA protects those with known limitations related to pregnancy, childbirth, or related medical conditions. The condition does not need to rise to the level of disability. Instead, pregnancy itself is covered. These terms are broadly defined in the PWFA and may include infertility and fertility treatment, use of contraception, termination of pregnancy, and many other pregnancy-related issues. PWFA also covers several conditions that are not unique to pregnancy or childbirth, such as migraine headaches, nausea or vomiting, and others.

ADA: The ADA covers individuals with disabilities – a significantly broader category than PWFA but more limited in scope when it comes to pregnancy and pregnancy-related conditions. Under the ADA, pregnancy itself is not considered a disability and is not covered unless there are additional related conditions that rise to the level of a disability.

4. Can an employer require medical documentation before providing an accommodation?

PWFA: The PWFA proposes that there are many situations in which an employer should review and provide an accommodation without requiring medical documentation. Thus, an employer may only require certification if it is reasonable for the employer to determine whether to grant the accommodation. The PWFA also introduces the concept of the employee’s self-confirmation. This means the employee’s statement about limitations and accommodations is all that is required in some cases, and requesting documentation is not reasonable. It would also not be reasonable if the limitation and need for accommodation is obvious, which could be:

• • • when the employee has provided sufficient information,
    • when the employee is pregnant and requests any of the four common types (see below),
    • or when the limitation is lactation or pumping.

ADA: Under the ADA, employers may only ask for medical certification when the disability and/or need for accommodation is not known or obvious. If the disability and need for accommodation are obvious, such that the employer knows of the disability without the employee mentioning it or asking for an accommodation, an employer should move to the next step of identifying potential accommodation(s).

5. What types of accommodations must be provided?

PWFA: Each situation must be reviewed on a case-by-case basis, similar to the ADA, but four requests should be processed quickly without medical documentation and with a limited interactive process:

• • • carrying and drinking water
    • additional restroom breaks
    • sitting or standing changes
    • breaks to eat or drink, as needed

In addition, the PWFA provides a non-exhaustive list of potential accommodations, including job restructuring, modified schedules, more frequent breaks, permitting the use of paid leave or providing unpaid leave, light duty, telework, and more.

It is also important to note that the PWFA will generally cover requests related to lactation and pumping, which are not typically covered under the ADA.

ADA: The EEOC has provided a similar list under the ADA.

6. Can the employer provide alternative options for the accommodation without the employee’s consent?

PWFA: No. The PWFA does not allow an employer to choose an accommodation but requires collaboration through an interactive process.
ADA: Yes. The ADA also typically uses the interactive process but allows the employer to choose to provide an alternative accommodation rather than the employee’s requested accommodation as long as it is effective.

7. Can the employer require leave as an accommodation?

PWFA: The PWFA prohibits an employer from requiring an employee to take a leave of absence as an accommodation if the employee is seeking an at-work accommodation (and such accommodation is reasonable and available).
ADA: This is a best practice under ADA but not a requirement.

As employers continue to adjust processes to align with PWFA requirements, a couple of things that will help get you started on being compliant prior to the effective date of the final regulation, June 18, 2024:

• • Review your existing accommodations policy (and related process control documents) to ensure compliance with PWFA, or consider drafting a separate PWFA policy.
  • Train your people managers and HR to ensure they are aware of the broadened requirements under PWFA so that they understand how to recognize a request for accommodation under the PWFA.

For additional information, check out the EEOC’s summary of PWFA. The EEOC previously released the proposed PWFA regulations and published the final regulations on April 19. They will go into effect 60 days later, on June 18, 2024.

Employers should also be aware of many existing laws that protect pregnant employees, including the ADA, The Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), and various state/local laws that require accommodation or required an employer to provide other protections and benefits.

This information is provided for informational purposes and should not be considered legal advice.

August 8, 2023

MMA’s Absence, Disability, and Life Practice and Empathy, a platform for helping families navigate the emotional and logistical challenges of loss, recently partnered to better understand how top employers are supporting their employees in some of life’s most difficult moments – through bereavement and loss.

The research conducted sheds light onto the key bereavement care initiatives and comprehensive benefits being offered at today’s top companies.  The findings show the compassion industry-leading companies are showing their workforce, bringing in a new era of bereavement support.

This is the first installment of a broader series. The “Moments that Matter” series sets out to recognize compassionate, industry-leading large employers who are committed to supporting their employees during life’s most challenging times.  The series builds off the release of MMA ADL’s 2023 Leaves of Absence and Time Away from Work Survey, which revealed a significant focus on and expansion of company-paid policies among employers.

March 6, 2020

Introduction

The emergence and spread of the coronavirus disease (COVID-19) has elicited myriad reactions on all fronts. While companies are struggling to forecast the economic impact, they must also manage immediate business needs and at the same time demonstrate care for the well-being of their employees. We have all seen the first-level precautionary advice on reducing the spread of the virus such as amplified hygiene and cleaning practices, limited contact with large groups of people, and travel restrictions, but employers must also prepare for employee absences that may be a necessary component of any business continuity plan.

Developing a “Coronavirus Leave” Policy

MMA ADL’s Absence, Disability and Life (ADL) practice has been in close contact with our customers to see how they are responding to this issue and provide assistance where possible. This collaboration, in conjunction with advice from legal counsel, has resulted in the following points to consider in developing a “quarantine” policy focused on coronavirus or other infectious disease.

Policy Design

Keeping in mind that a company’s industry or business needs may warrant adjustments in approach, the basic outline of a quarantine policy may be as follows:

1. 1. Employees should be informed around when and how to notify management of potential or confirmed exposure. Managers should be provided with guidance on next steps in either scenario.
   2. If an employee has been exposed, or fears they may have been exposed, to someone with coronavirus, the employee will be required to work from home for a 14-day period to monitor whether symptoms develop.

• • • • This could be extended to include employees returning from international travel.
      • Special consideration may need to be given for essential personnel who cannot work from home, such as an alternative work location.
      • Additional considerations should be made for non-essential employees that do not have the option to work from home.

1. 3. If no symptoms develop the employee should follow the employer’s normal return to work process.
   4. If symptoms develop the employee should follow the employer’s process to apply for Short Term Disability (STD), FMLA and/or any applicable company leave.

• • • • Note that the diagnosis may or may not qualify under STD; normal plan rules and requirements would apply.
      • If the virus was communicated in the course of the employee’s regular job, the absence could fall under Workers’ Compensation. If the employee contracted the virus at work, but incidentally, Workers’ Compensation likely would not apply.
      • The U.S. Equal Employment Opportunity Commission (EEOC) has stated in recent guidance (see below under ADA/ADAAA) that employers are justified in requesting return to work certification from a doctor before permitting employees to return to the workplace. In addition, due to demand that may result from an increased need for health care providers it is suggested that employers may attempt a “new approach” for this certification. Employers will want to engage their disability insurers and leave administrators in determining what will satisfy the requirement (e.g., certification from a telemedicine provider, etc.).

Quarantine – to Pay or Not to Pay?

If an employer’s existing leave policies do not provide for paid leave under these circumstances, the employer can require employees to use accrued sick time, vacation or PTO for the days they must stay home, and may require exempt employees to make up lost work time. Employers may want to consider adjusting existing time off or leave programs, or creating a separate paid policy, to support employees who must stay at home.

Be Conscious of Compliance

Employers should take care that any policy developed complies with the requirements of various employment laws:

Family and Medical Leave Act of 1993 (FMLA): Coronavirus would qualify as a “serious health condition” under FMLA, so FMLA procedures should be followed for eligible employees who have been diagnosed. Leave for an employee without an actual coronavirus or severe flu diagnosis should not be designated FMLA. Comparable state laws may provide additional leave benefits.

Americans with Disabilities Act (ADA/ADAAA): Leave or work schedule changes could be considered reasonable accommodations to alleviate physical or mental health impacts of the coronavirus threat. The U.S. Equal Employment Opportunity Commission (EEOC) has released a “preparedness” document to assist employers in identifying how and when the ADA might apply under pandemic circumstances; the document addresses:

• • Medical inquiries and requiring medical examination
  • The definition of “direct threat”
  • Requiring symptomatic employees to stay home
  • ADA-compliant practices prior to and in the event of pandemic:

–   What is ok and not ok to ask and require of employees

–   Requiring symptomatic employees to stay home

–   Providing new and maintaining existing accommodations

–   Requiring a doctor’s note to return to work

Fair Labor Standards Act (FLSA): Generally speaking, the FLSA does not require employers who are unable to provide work to non-exempt employees to pay them for hours they otherwise would have worked (note that a CBA or other contract may alter this). Salaried exempt employees must receive their full salary in any week in which they perform any work, with limited exceptions.

The Department of Labor’s webpage dedicated to Pandemic Flu and the Fair Labor Standards Act further clarifies that the FLSA and its implementing regulations do not prevent employers from implementing telework or other flexible work arrangements. If these arrangements are allowed, employers must pay non-exempt employees no less than the minimum wage for all hours worked and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek.

HIPAA: Circumstances surrounding a pandemic do not excuse employers from their responsibility to protect their employees’ privacy under HIPAA. However, a recent bulletin released by the Department of Health and Human Services (HHS) states that “appropriate uses and disclosures of the information still may be made when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes”. The full guidance, which features additional resources for information, can be found on the HHS’ Emergency Situations webpage.

Inform Your Workforce

Employers are required under the Occupational Safety and Health Act’s (OSHA) general duty clause to provide their employees a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm”.  It is imperative that employers develop a solid action plan to protect their employees from the spread of infectious disease. Available resources and benefits, plus what is expected of employees themselves, must be clearly communicated.  It is recommended that established policies be posted in accessible areas and distributed to each employee as possible.

Additional Considerations

Employers are also advised to:

• • Work with all benefit plan carriers and vendors to ensure that any “actively at work” requirement included in a contract or agreement features an exception for employees on quarantine leave, thereby maintaining employees’ active status and benefits eligibility during this period.
  • Contact vendors who manage Business Travel Accident and travel assistance programs to see what may be available to employees who are away from home including evacuation support and get clarification/confirmation on what exclusions may exist so you can plan accordingly.
  • Remind employees of and encourage them to utilize existing resources to help them navigate a situation that is (or may become) challenging, such as Employee Assistance Programs (EAP), programs available through their medical carrier and even how to leverage telemedicine.
  • Consult the following resources for additional information and developments:
    • • Centers for Disease Control and Prevention (CDC): Coronavirus Disease 2019 (COVID-19) and Interim Guidance for Businesses and Employers
      • U.S. Department of Labor / OSHA: COVID-19 Control and Prevention
      • World Health Organization (WHO): Coronavirus disease (COVID-19) outbreak

Conclusion

As the full impact of this current threat is yet unknown, employers are strongly advised not to take a “wait and see”’ approach, but to put policies and processes in place to help their organizations weather this, and potentially any future, storm. These decisions should include multiple disciplines within your organization as it relates to broader risk and talent management strategies.

For additional information, please visit MarshMMA.com Coronavirus Outbreak Information

We’re here to help. MMA ADL’s absence, disability and life experts are constantly developing innovative employee-benefit solutions to maximize workforce productivity, ensure compliance and enhance the employee experience.

To learn more:

Email: [email protected] or visit www.trionadl.com

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This document is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. MMA ADL Group, a Marsh & McLennan Agency, LLC Company shall have no obligation to update this publication and shall have no liability to you or any other party arising out of this publication or any matter contained herein. Any statements concerning actuarial, tax, accounting or legal matters are based solely on our experience as consultants and are not to be relied upon as actuarial, accounting, tax or legal advice, for which you should consult your own professional advisors. Any modeling analytics or projections are subject to inherent uncertainty and the analysis could be materially affective if any underlying assumptions, conditions, information or factors are inaccurate or incomplete or should change. Copyright © 2020 MMA ADL Group, a Marsh & McLennan Agency, LLC Company. All rights reserved.