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As we presented earlier in our WorkSaver newsletter the federal Pregnant Workers Fairness Act (PWFA) became effective June 27, 2023. This act entitles pregnant employees the right to reasonable accommodations pertaining to pregnancy, childbirth, post-partum recovery period and any related medical conditions. The PWFA covers conditions that are transitory and do not qualify as a disability under the ADA. Much of the information provided below is taken from a Lexology blog dated July 14th, 2023 written by labor attorneys J. Grock, A. Smith, and A. Cervantes.¹ Additional information regarding accommodating pregnant individuals during physical abilities tests was derived from the founder of WorkSaver Employee Testing Systems, Richard Bunch, PhD, PT, CBES and it’s CEO, Trevor Bardarson, PT, OCS, CBES.²

Pregnancy itself is not a disability under the ADA; however, an employee’s pregnancy, childbirth, or post-partum period can result in secondary conditions which do qualify as disabilities under the ADA. The PWFA’s purpose is to cover pregnancy-related limitations that do not rise to the level of a disability. In response to the PWFA, employers must take steps now to modify existing policies, practices, and trainings to establish full compliance with the new law’s mandates in order to avoid liability exposure.

The PWFA requires the employer to provide “reasonable accommodations (unless such accommodations create an undue hardship to the operations of the business) to any employee that has a physical or mental condition arising out of pregnancy, childbirth, recovery from childbirth, or any related medical condition. The key point to remember is that the PWFA requires accommodation regardless of whether the employee’s limitation qualifies as a disability under the Americans with Disabilities Act.

The House Committee on Education and Labor Report on the PWFA references some examples of what may be considered “reasonable accommodations” under the act:

1. scheduling due to morning sickness or pre-natal appointments,
2. job reassignment,
3. additional restroom breaks,
4. access to water to prevent dehydration,
5. assistance with manual labor,
6. modified seating, part-time work, and
7. leave, including time off to recover from delivery.

In addition, the PWFA makes clear that employees are “qualified” and therefore may be entitled to reasonable accommodations, even if that employee cannot perform essential job functions on a temporary basis, with or without accommodation. This is different from the ADA’s standard, in which employers are not required to remove essential job functions in order to reasonably accommodate a disabled employee.

In addition to these obligations, the PWFA requires employers engage in an interactive process with the employee, prohibits denying a job or employment opportunity to a qualified employee or applicant based on their accommodation request, prohibits requiring an employee take leave when reasonable accommodation would keep them working, and prohibits retaliating against an individual or otherwise interfering with an employee’s PWFA rights.

These employer obligations are, of course, in addition to existing duties related to pregnancy and post-partum employee accommodation and leave under the ADA, Title VII, Family and Medical Leave Act, PUMP Act, and state law. In California, the Pregnancy Disability Leave (“PDL”) law requires employers to provide job-protected leave for up to four months to employees who are disabled by pregnancy, childbirth, or related medical conditions, and to provide reasonable accommodations to those “affected” by such conditions upon the advice of their health care provider, while the PWFA will likely require on-the-job accommodations, job reassignment, and possibly even leave, for such conditions that do not rise to a disability.

Pregnancy Accommodations and Employment Screening

Though the law has already gone into effect, employers can expect further regulatory guidance that will expand what is considered a “reasonable accommodation” under the PWFA. As a provider of nation-wide EEOC compliant post-offer physical ability tests (PATs), also referred to as fitness for duty tests, WorkSaver takes a position that the PWFA provides the legal foundation for accommodating all pregnant employees in the PAT process and temporarily after job placement (until full recovery and medical release to full duty is achieved) based on potential risks associated with pregnancy. These risks are associated with:

1. Medical complications (e.g., gestational hypertension, preeclampsia, systemic vascular dysfunction, gestational diabetes, bleeding and miscarriage.
2. Physiological changes (e.g., increased ligament laxity from changes in hormones that can increase instability in the pelvis during lifting)
3. Biomechanical changes (e.g., increasing girth of abdomen that changes body mechanics and internal forces in the body when lifting and squatting)

Although it is well known that many pregnant individuals may exercise, and even lift relatively heavy weights, well into their pregnancy, the obligation of employers is to eliminate or reduce the potential risk of harm to its employees. The reality of human biology is that no one person is the same. Pregnant individuals may have a medical conditions that go undetected by a standard medical examination and all will experience  alternations of the body that will potentially reduce their capacities to work in certain postures and perform manual tasks such as lifting. By accommodating all pregnant job applicants and employees regardless of specific requests for accommodations or signs of definitive medical problems, the employer will be applying an equitable and fair policy that will prevent or reduce injuries and improve work engagement and productivity.

Accommodations that can be considered for employment testing can include:

1. Prior to a post-offer PAT (or any functional employment test), require a medical examination to determine if the individual has a high-risk  pregnancy (i.e., a pregnancy that involves increased health risks for the pregnant person, fetus or both.)
2. Conduct the PAT examination without including functional tests that create significant physical exertion until full recovery from pregnancy and a medical release acquired to return to full duty. In effect, the employee is placed on restrictions until fully recovered and then required to pass a full blown PAT for return to work full duty.

A question may arise as to what happens when the provided accommodations are  terminated after full recovery from pregnancy and the employee is unable to pass the PAT required for return to full duty work? In such a scenario, the employer can conduct an interactive accommodation review with the employee to determine if any reasonable accommodation ( extended or permanent) is available.

Although PWFA does not specifically address accommodations offered in the PAT process, the rationale for doing so is considered to be consistent with the intent of the law.

Employers should always remember that failure to comply with the PWFA could result in legal exposure. The same Title VII enforcement mechanisms exist for the PWFA and can result in EEOC investigations and civil penalties for violations.

References:

1. Grock J, Smith A, and Cervantes A (with law firm: Atkinson Andelson, Loya Ruud & Romo), Pregnant Workers Fairness Act Expands Accommodation Obligations, Labor & Employment Law Blog, Lexology, July 14 2023.
2. Bunch, R. and Bardarson, T., Matching the Job to the Worker and the Worker to the Job, ASSP Region IV PDC, Bryant Conference Center, University of Alabama, Tuscaloosa, Alabama, April 26, 2023.