In Part 2 of the PWFA we will be covering documentation, reasonableness of request, undue hardships and predictable assessments.
Keep in mind, under either the ADA or the PWFA, the employer is not required to seek documentation confirming the condition from an employee seeking an accommodation.
If the employer chooses to seek documentation under the PWFA, the employer may only seek supporting documentation when it is reasonable under the circumstances for the employer to determine whether to grant said accommodation.
Employers must not seek documentation when:
1. The accommodation due to the limitation is obvious and the employee has provided self-confirmation.
For example – when a pregnant employee requests a larger uniform to accommodate her new size.
2. The employer already has sufficient information to determine whether the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition.
As an example, your employee has already submitted FMLA paperwork, you know your employee is pregnant, there is no need to get a doctor to tell you she is pregnant when she later requests a lifting restriction from her doctor be accommodated.
3. The employee is pregnant and requests a work adjustment that is minor and commonly associated with pregnancy. The final rule has coined the term “predictable assessment” for certain requests employers, generally, should be able to respond to without needing any supporting documentation. We’ll review that list of “predictable assessments” in more detail below.
4. The requested accommodation is related to a time or place to pump at work.
5. The requested accommodation is also available to employees without known limitations under the PWFA consistent with the employer’s policy or practice without submitting supporting documentation.
As an example – If you have a policy that allows employees a certain amount of break time, you cannot request documentation to support a request from a pregnant employee to take advantage of the same amount of break time.
Even if an employer is not prohibited from seeking documentation as I just discussed, the employer must limit the request to only the minimum information needed to confirm the physical or mental condition that relates to pregnancy, childbirth or related medical and that an adjustment or modification is necessary.
This element is consistent with the EEOC’s guidance that such inquiries should be limited only to the medical information for which there is a legitimate business need.
Now that we’ve covered the differences, let’s review some of the concepts from the ADA that have been adopted into the PWFA.
The undue hardship definition is a term from the ADA and the PWFA uses a similar definition. It generally means a significant difficulty or expense for the operation of the employer. The factors include:
· The length of time that the employee or applicant will be unable to perform the essential functions.
· Whether there is actually work for the employee/applicant to accomplish.
· The nature of the essential function, including its frequency.
· Whether the employer has provided other employees or applicants in similar positions who are unable to perform their jobs with temporary suspensions.
· If necessary, whether there are other employees, temporary employees or third parties who could perform or be temporarily hired to complete the essential functions and lastly,
· Whether the essential functions can be postponed or remain unperformed for any length of time, if so, for how long.
When assessing the reasonableness of a request and the potential undue hardship, it is important to keep the predictable assessments in mind. While the “predictable assessments” don’t alter the definitions, these are modifications so common and, in general, so easy to permit, that they are almost always considered reasonable.
The EEOC adopted four categories of predictable assessments that allow employees to:
1. Carry water and drink, as needed, in the employee’s work area.
2. Take additional restroom breaks, as needed.
3. Stand or sit, as needed.
4. Take additional breaks to eat and drink, as needed.
Other recommendations that would fall into the same predictable assessments category with little or no difficulty include such things as closer parking spaces, and work stations closer to bathrooms.
Regardless of whether an employee requests an accommodation in a “predictable assessment” category or a more challenging one, an employer must still conduct an individualized assessment when determining whether a modification is a reasonable accommodation that will impose an undue hardship.
There are additional required lactation accommodations that will be presented in a separate video under the “Providing Urgent Maternal Protections for Nursing Mothers Act ( PUMP ACT ).
Until next time, this is Russ Moen for Express Pro Talks.