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I don’t understand why there is such a fuss. Doesn’t the Pregnant Workers Fairness Act just require employers to treat pregnant employees just like they treat employees with disabilities?
You are correct that the Pregnant Workers Fairness Act adopts the concepts of reasonable accommodation, the interactive process, and undue hardship that we all are familiar with under the ADA, but there are some key differences between the PWFA and the ADA. We want to highlight two of them.
First, while the ADA requires an employee to have an impairment that substantially limits a major life activity to be eligible to receive reasonable accommodations in the workplace, the PWFA only requires the employee to have a condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions. There is no threshold level of severity required to trigger the obligation to consider providing a reasonable accommodation. So, if a pregnant employee needs more frequent restroom breaks or needs to take extra breaks to eat or drink, an employer is going to have to grant them unless they can show it is an undue hardship.
More importantly, HR professionals all know that employers are not required to eliminate an essential function of the job as a reasonable accommodation under the ADA. Under the PWFA, however, employers must consider eliminating one or more essential functions of the job if the function can be eliminated temporarily and if the employee expects to be able to resume doing it in the near future unless doing so would create an undue hardship.
This is a dramatic shift in the way employers must think about reasonable accommodations.
What is the bottom line then? While much of what the PWFA requires is very familiar to HR professionals, the PWFA also requires them to readjust their thinking to ensure they actively consider requests for reasonable accommodations from pregnant employees for limitations that arise during most pregnancies, even if those requests are to temporarily eliminate an essential function of their job.
