THE PREGNANT WORKERS FAIRNESS ACT
IMPLEMENTING THE FINAL RULE
PART THREE
And finally, in Part 3 of this PWFA series, we’ll be defining the interactive process and outlining some of the prohibitive actions and considerations which all employees should know.
The Interactive process implemented in the Americans With Disabilities Act should be followed when implementing the PWFA. It generally means a discussion or two-way communication between an employer and employee/applicant to identify a reasonable accommodation. Lastly, always remember to document these discussions.
You may be wondering what even triggers the interactive process to start. Just as with the ADA, the PWFA does not require that employees use “magic words” or submit a request for accommodation in writing.
Requesting an accommodation under the PWFA has two elements:
· First – The employee or applicant must identify the limitation that is the physical or mental condition and that it is related to, affected by, or arising out of pregnancy, childbirth, or related condition; and
· And second, the employee or applicant must indicate that they need an adjustment or change at work.
An employee/applicant may request an accommodation in conversation or use another mode of communication to inform the employer. It is imperative that supervisors and managers understand that subtle pleas for help revealing a limitation may trigger the employer’s obligation to explore potential accommodations.
There are a number of prohibited acts and considerations which all employers must know:
1. The PWFA prohibits an employer from denying a qualified employee or applicant with a known limitation a reasonable accommodation, absent undue hardship.
2. An unnecessary delay in responding to a request for accommodation may result in a violation if the delay results in a failure to provide the accommodation. This can also be true even if accommodation is eventually provided.
3. If the employee declines the offered accommodation and without it, the employee cannot perform one or more of the essential functions, then the employee will no longer be considered qualified. However, because the PWFA allows for the temporary suspension of one or more essential functions, the employer must consider whether any of the essential functions can be temporarily suspended before a determination is made.
4. If the request for documentation was not reasonable for the employer to determine whether to grant the accommodation, the employer cannot defend the denial based on the lack of documentation provided by the employee.
5. If there is more than one effective accommodation, the employee’s or applicant’s preference should be given primary consideration. However, the employer has the ultimate discretion to choose between potential reasonable accommodations.
6. The PWFA prohibits an employer from requiring a qualified employee/applicant to accept an accommodation other than one arrived at through the interactive process.
7. The PWFA prohibits an employer from denying employment opportunities to a qualified employee/applicant if the denial is based on the employer’s need to make an accommodation for the known employee’s limitation.
8. The PWFA prohibits an employer from requiring a qualified employee/applicant with a known limitation to take leave, either paid or unpaid, if another accommodation exists, absent undue hardship.
9. The PWFA prohibits an employer from taking an adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation for a known limitation.
10. The PWFA prohibits retaliation against any employee/applicant, or former employee because that person has opposed acts or practices made unlawful by the PWFA.
11. The PWFA prohibits coercion, intimidation, threats, or interference with any individual aiding or encouraging other individual in the exercise or enjoyment of rights under the ACT.
The rule also prohibits harassment based on an individual’s exercise or enjoyment of rights under the PWFA.
In conclusion, as seen in the above, there are many facets and unforeseen circumstances that can expose an unsuspecting employer to significant legal risks. This new law, like all newly passed laws will be challenged and defined through the courts.
We hope you have found this video informative and should you need additional discussion or review, please don’t hesitate to contact your local Express Employment office.
Until next time, this is Russ Moen For Express Pro Talks