Published Article

Understanding Reasonable Accommodations Under the ADA and PWFA

October 28, 2024

The Americans with Disabilities Act (ADA) and the Pregnant Workers Fairness Act (PWFA) both require employers with 15 or more employees to provide reasonable accommodations that will enable employees to perform the function of their job with respect to disability and pregnancy, respectively. While the ADA and PWFA coexist rather harmoniously, there are a number of differences one should be aware of when operating under the relative acts, particularly with respect to providing reasonable accommodations.

Purpose of the ADA and PWFA

The ADA is designed to eliminate discrimination on the basis of disability by requiring employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment opportunities available to others by virtue of reasonable accommodations.

Similarly, the PWFA is meant to ensure workplace accommodations for workers with known limitations by requiring that covered employers provide “reasonable accommodations” to employees and applicants as may be necessitated by pregnancy, childbirth, or related medical conditions unless the employer can demonstrate that such accommodations would cause undue hardship on the operation of the business. Both the ADA and the PWFA protect “qualified employees” from “covered employers.”

Definition of ‘Qualified Employee’ Under ADA vs. PWFA

Under the ADA, a “qualified employee” with respect to an individual with a disability means the individual satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of the job.

The PWFA expands this definition of a qualified employee by providing two alternatives through which an employee or applicant is considered qualified. Not only are individuals who are able to perform the essential functions of their role with or without a “reasonable accommodation” considered a “qualified employee,” but also individuals who are:

• Unable to perform an essential function of their role for a temporary period of time.
• Able to perform that essential function in the near future.
• Able to be reasonably accommodated by the employer for their inability to perform essential functions.

This expansive definition of “qualified employee” under the PWFA is in stark contrast to the ADA’s approach—which provides that an individual with a disability who is unable to perform the essential functions of their position, with or without an accommodation, is not qualified for the protections of the ADA. In other words, the temporary suspension of one or more essential functions of the job would not be a reasonable accommodation under the ADA.

Under the ADA, it is required that an employee be able to perform all essential functions of their job, with or without accommodations, unlike the PWFA. Under the PWFA, one “reasonable accommodation” identified by the U.S. Equal Employment Opportunity Commission’s (EEOC) nonexhaustive list of accommodations is the “temporary suspension of one or more essential functions of the job.”

Covered Medical Conditions

According to the EEOC’s final regulations, infertility, menstruation, endometriosis, fertility treatment, miscarriages, and abortion fall squarely within the scope of PWFA protections. With respect to accommodations for a “related medical condition” pursuant to the PWFA, the employee’s medical condition must relate directly to pregnancy or childbirth.

If an employee has a condition that does not relate to pregnancy or childbirth, the condition is not covered under the PWFA. This is not to say that the related medical condition must be caused solely, originally, or substantially by pregnancy or childbirth, but must simply relate. For example, if an employee who gave birth two weeks ago is vomiting because of food poisoning, that medical condition is not related to pregnancy or childbirth and the employee is not eligible on that basis for a PWFA reasonable accommodation. Notably, according to the EEOC’s final regulations, infertility, menstruation, endometriosis, fertility treatment, miscarriages and abortion fall within the scope of PWFA protections.

Conversely, for a person to be defined as “disabled” and therefore covered by the ADA, the person must either:

• Have a physical or mental impairment that substantially limits one or more major life activities.
• Have a record of such impairment.
• Or be regarded as having such an impairment.

That physical or mental impairment need not relate to a particular condition, such as pregnancy or childbirth, but must render that person disabled by substantially limiting one or more major life activities.

Differences in Reasonable Accommodation Standards

Both the ADA and the PWFA expressly require reasonable accommodations, unless the employer can demonstrate that such accommodation(s) would present undue hardship for the employer. Thus, once a limitation has been identified, reasonable accommodation(s) must be provided.

Generally, under the ADA, an accommodation is any change in the work environment or in the way that things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Further, what is “reasonable” for an accommodation under the ADA is that which seems reasonable on its face—something that appears feasible or plausible—and is effective in meeting the needs of the individual to enable them to perform the essential functions of the position.

Under the PWFA, the EEOC provides a non-exhaustive list of reasonable accommodations, many of which may also be considered reasonable pursuant to the ADA.

Legal Challenges and Compliance Considerations for PWFA

Notably, the State of Texas sued the United States Department of Justice (DOJ), the EEOC, and other federal agencies in February 2023, alleging that because only 205 congressional members were physically present to vote on the PWFA, the passage violated the quorum clause of the United States Constitution. Moreover, Texas argued that the 2020 COVID-19 pandemic rule permitting non-present congressional members to vote by proxy and thus be counted towards the quorum requirements was unconstitutional. The United States District Court for the Northern District of Texas agreed, blocking enforcement of the PWFA against Texas.

However, the permanent injunction issued blocked enforcement of the PWFA against the state of Texas only—i.e., the injunction does not extend to any private or public employers outside of Texas. As such, this does not prevent others from making the same argument as Texas. While Louisiana has yet to make such an argument, the opportunity subsists.

Until such a time that the argument is made and because the ruling does not apply to private employers in Texas or elsewhere nor public employers outside of Texas, all private and public employers outside of Texas are expected to continue to comply with the PWFA.

Also of note, in two consolidated cases in the Western District of Louisiana, a federal court judge issued a preliminary injunction blocking protections for abortion care in Mississippi and Louisiana, two states with statutes banning abortion. In these states, employees are not entitled to job-protected unpaid time off to get abortions or recover from their procedures, nor any other work-related changes they might need.

The court will hear dispositive motions in the near future to determine whether the injunction should become permanent. Similar suits filed by attorneys general in 17 other states were unsuccessful, finding that the plaintiffs lacked standing but could be refiled by a different plaintiff who may be harmed by application of the PWFA as it relates to abortion.

Best Practices for Employers: Navigating ADA and PWFA Accommodation Requests

Because both the ADA and PWFA are applicable to more individuals than not, it is important for employers to be up to date with best practices when an employee requests “reasonable accommodation(s).”

Employees Must Speak Up: Employees are responsible for initiating requests for reasonable accommodations under both the ADA and PWFA. These requests do not have to be in writing or include specific language like “reasonable accommodation.”

Engaging in an Interactive Process: When a request is made, the process often involves a discussion between the employer and employee to explore possible accommodation options and assess their feasibility. Documentation may be requested if the need for the accommodation is not clear.

Considering Undue Hardship: The concept of “undue hardship” varies between the ADA and PWFA, with the ADA requiring a case-by-case analysis. Under the PWFA, factors like the employer’s financial resources and the impact on business operations are key considerations.

Clear Communication Is Key: Establishing a clear plan for the accommodation, outlining expectations, and maintaining open lines of communication help with a successful implementation and adjustment process, fostering a safe environment for employees to request accommodations.

Staying Informed: Staying updated on changes in laws and regulations is crucial as both the ADA and PWFA aim to provide evolving support for employees with additional needs. The employment landscape can shift, requiring ongoing attention to compliance.

The Takeaway

The distinctions between the ADA and PWFA highlight how employers can navigate their responsibilities for providing reasonable accommodations. Both acts aim to support workers with disabilities or pregnancy-related needs, but understanding their specific requirements is key to maintaining compliance. Recognizing these differences enables employers to create a more inclusive workplace while adhering to the law.

Reprinted with permission from the October 28, 2024, issue of The Legal Intelligencer. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.