In the world of workplace accommodations, an employer must track many laws and regulations to ensure that they are compliant and provide employees with applicable protections, rights, and benefits. The primary law that drives these requirements for employers is the Americans with Disabilities Act Amendments Act (ADAAA, or ADA for short).

The ADA requires a covered employer to provide a reasonable accommodation to a qualified individual with a disability, meaning they must make adjustments to the job or work environment to allow the employee to perform their essential functions effectively unless doing so would cause undue hardship for the employer.

Employers must also be aware of the much more recent Pregnant Workers Fairness Act (PWFA), which has some of the same foundations as the ADA. The PWFA’s central requirement is that “covered employers must provide reasonable accommodations to qualified employees, which is anyone with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship.” But, beware of the details – there is some significant variation between the ADA and PWFA, as outlined in a recent Connecting with Compliance post: “Comparing Accommodation Rights: PWFA and ADA.”

What steps can an employer take to ensure compliance?

The first step, which is consistently repeated in blog posts and webinars, is to ensure that all people managers can recognize and respond appropriately when an employee requests accommodation. Of course, there are other points in the accommodations process where an employer has the potential to drop the ball, so every employer should ensure they have a robust accommodations policy and process in place. Failure to recognize these requests and/or failure to follow (and document) a consistent process for providing reasonable accommodations can result in complaints, charges, and lawsuits.

 

The impact of not being compliant

The U.S. Equal Employment Opportunity Commission (EEOC) shared in October 2024 that it filed 110 lawsuits for the year ending September 30, 2024, focused on ensuring that workplaces are fair, safe, and inclusive. The EEOC views litigation (i.e., filing lawsuits against employers) as a strategic tool that can push more employers toward compliance with these requirements.

Of those 110 cases, 48 involved potential violations of the Americans with Disabilities Act (ADA), and another five were related to the Pregnant Workers Fairness Act (PWFA). It appears that the PWFA will remain a focus for the EEOC, so employers must focus on the nuanced requirements when it comes to requests for accommodation from pregnant employees. Employers must also be aware of the broad definition of “pregnancy-related” under the PWFA, as evidenced here when an employer failed to accommodate an employee who requested to recover and grieve following a stillbirth.

With nearly half of those 110 cases focused on ADA violations, employers must also remain diligent regarding all accommodation requests. Failure at any point in the process can lead to charges or litigation. Even when the request is properly recognized, and all sides agree on an accommodation, the employer must ensure that it is implemented and effective.

Employers must establish and adhere to a clear accommodations process to effectively mitigate the risk of EEOC charges related to the ADA and PWFA. By doing so, they not only reduce the likelihood of potential EEOC charges and/or litigation from employees but also foster a more inclusive work environment. This proactive approach demonstrates a commitment to supporting all employees, which is essential for maintaining a positive workplace culture.

How can Marsh McLennan Agency’s Absence, Disability, & Life Practice help?

Understanding and implementing effective accommodation strategies is crucial for ensuring compliance and fostering an inclusive workplace. If you need assistance navigating your accommodation requirements, developing a comprehensive ADA policy, or reviewing your current processes, Marsh McLennan Agency is here to support you in creating an environment that values every employee’s needs and promotes a culture of accessibility within your organization.

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.