21 Nov The Difference Between the Pregnant Workers Fairness Act and the Americans with Disabilities Act
While there are some similarities between the Pregnant Workers Fairness Act (PWFA) and the Americans with Disabilities Act (ADA), they have distinctly different purposes. The PWFA covers workers who weren’t eligible for accommodations under the ADA. If you have at least 15 employees, your company must comply with the provisions of the ADA and PWFA.
What Is the PWFA?
The PWFA went into effect on June 27, 2023, but the final regulations didn’t go into effect until June 18, 2024. At its heart, this law was created to settle decades of back-and-forth debate over the status of pregnancy in the workplace.
In the 1960s, pregnant workers could be denied positions based on their pregnancy. Non-pregnant women could be denied high-paid positions simply because they had the potential to become pregnant. Thanks to a 1908 Supreme Court ruling, states could legally limit the length of a woman’s workday simply due to her gender.
While the Pregnancy Discrimination Act (PDA) of 1978 forbade discrimination based on pregnancy and childbirth, this anti-discrimination was often more of a theory than a day-to-day practice. Courts often sided with employers in PDA cases because of confusion about which cases were sufficiently similar to require the PDA’s protections.
Even when pregnant workers were protected from being fired, they weren’t protected from on-the-job requirements that were unsafe or uncomfortable for the temporary change to their health status. Because of this, the concepts behind the PWFA were born.
Under the PWFA, workers can receive on-the-job accommodations for any condition related to pregnancy and childbirth. For example, the worker may ask to come in later because of morning sickness. If riding on public transportation becomes excessively uncomfortable, they may ask to work remotely.
Some accommodations must be made automatically. The law specifically mentions added bathroom breaks, access to snacks, sitting or standing options, and access to water. Additionally, workplaces should generally allow workers to self-attest to the condition instead of requiring a doctor’s note.
What Is the ADA?
The ADA was passed in 1990. This law requires employers to provide reasonable accommodations to disabled workers as long as the workers are able to carry out their essential job functions. In particular, the ADA applies to workplaces that have at least 15 employees.
While businesses often focus on the ADA’s impact on hiring, managing, and terminating workers, the law covers many other parts of day-to-day life as well. For instance, it prohibits discrimination in commercial facilities, telecommunication, and public accommodations.
Key Differences Between the PWFA and the ADA
In the recent Missions to Grow podcast on, “Navigating Accommodations Under the PWFA: Insights for Employers”, Brian Shenker, HR lawyer at Jackson Lewis discussed some of the reasons behind the creation of the PWFA. According to Shenker, “There are lots of conditions that come up with pregnancy that don’t fit within the ADA definition of a disability. And we’re preventing a pregnant woman from working but not giving her ADA protection.” Through the creation of the PWFA, the legal system was able to resolve some of the gaps in the ADA.
The Treatment of Pregnant Workers
One of the most obvious differences between the PWFA and the ADA is their approach to pregnant workers. Under the ADA, pregnant workers aren’t treated as if they are disabled. Unfortunately, this generally means that pregnant employees aren’t covered by the ADA.
Essential Job Functions Aren’t Always Required
Another major difference between the ADA and PWFA is in the handling of essential job functions. The ADA says that applicants and employees must be able to fulfill all of their job duties. In comparison, the PWFA doesn’t demand that this requirement be met.
Even if the worker is unable to do all of the duties of the job, the PWFA may require the employer to make extra accommodations. Additionally, paid or unpaid leave should only be used as a last resort.
Minor Conditions Must Be Accommodated
As a general rule, the ADA doesn’t accommodate minor conditions. Headaches, colds, and minor pains aren’t covered. However, the PWFA will cover minor conditions. For instance, pregnant workers can get accommodations for morning sickness, discomfort from standing, frequent bathroom trips, and headaches are all examples of conditions that must be accommodated by employers under the PWFA.
The Interactive Process Must Be Sped Up
When someone makes a request for an accommodation under the ADA, they normally have a general idea about what type of accommodation may work. If not, employers can talk to professionals and brainstorm effective accommodations.
Under the PWFA, the process of accommodating workers is generally much faster. It must be done in consultation with the worker, so you can’t simply give someone a desk job unless they want a desk job. Additionally, the PWFA generally discourages documentation for most issues. If the employee says they need to come in late because of morning sickness, the employee’s attestation is enough for the PWFA’s protections to kick in.
Some Accommodations Are Automatic
The ADA doesn’t provide blanket accommodations for every disabled individual. In comparison, the PWFA does recommend some blanket accommodations. The following accommodations should automatically be provided to pregnant workers if they are needed.
- Giving workers extra restroom breaks when they need them.
- Allowing them to have extra breaks for eating or drinking.
- Letting workers sit or stand to be more comfortable.
- Providing workers with chances to drink water as they work.
Documentation Isn’t Always Necessary
When an employee requests ADA accommodations, employers are allowed to request medical documentation to show that the accommodation is necessary. With the PWFA, documentation is often not necessary or discouraged.
In general, you should err on the side of the employee. If the worker says they need to leave early because of pregnancy-related migraines, you don’t need to get documentation to prove it.
What Are Some Reasonable Accommodations Under the PWFA?
When it comes to choosing the appropriate accommodations for each worker, the best option will vary based on the worker’s medical issues. The following are just a few examples of what a reasonable accommodation might look like in the workplace.
- Modifying equipment, such as giving the worker a stool to sit on when their feet hurt.
- Temporarily reassigning the worker after receiving their approval.
- Remote working instead of working in person.
- Light duty or limited manual labor.
- Making the employee’s work schedule shorter or giving them different hours.
- Adjusting their uniform.
- Changing the food and drink policy so that the worker can drink water and have snacks more frequently.
On rare occasions, it may be impossible to accommodate a worker’s medical condition. In these cases, you can give the employee leave. However, this should generally be done as a last resort.
It’s important for employers to remember that all of these accommodations should be chosen through an interactive consultation with the employee. On a practical level, this ensures that the employee receives an accommodation that genuinely helps their medical issue.
Additionally, this type of interactive process helps to deter intentional and unintentional discrimination. For instance, some workplaces might try assigning the employee to light duty or non-promotable roles. In turn, this type of automatic assignment could impact the worker’s long-term pay and promotion opportunities.
This information is provided with the understanding that Payroll Partners is not rendering legal, human resources, or other professional advice or service. Professional advice on specific issues should be sought from a lawyer, HR consultant or other professional.