Here’s the full question we received:

Dear FELTG: I understand my agency’s obligation to accommodate employees now extends to pregnant workers. Is the process the same as it is for accommodating an individual with a disability?

And our answer:

Thanks for the question. The Pregnant Workers Fairness Act went into effect in June 2023. It is similar to the Americans with Disabilities Act (ADA)/Rehabilitation Act in that it requires agencies to accommodate the employee or applicant’s known limitations (but related to pregnancy and childbirth), unless doing so would cause an undue hardship. There are a few differences, though.

A couple of areas where the PWFA differs from the ADA:

1. The temporary nature of the accommodation.

With many disabilities, the need for accommodation might have no end in sight, but because the PWFA covers uncomplicated pregnancies, the accommodation will be temporary – in other words, there will be an end in sight. While we are still awaiting EEOC’s final regulations, the proposed rule defines the terms “temporary” (lasting for a limited time, not permanent, and may extend beyond “in the near future”) and “in the near future” (generally within 40 weeks).

2. The suspension of essential functions for a period of time.

Under the ADA, an employee is not qualified if she cannot perform the essential functions of her position with or without accommodation. Under the PWFA, an individual is still qualified – even if she cannot perform one or more essential functions of the job – if the:

  • Inability to perform the function(s) is “temporary,”
  • Worker could perform the function(s) “in the near future,” and
  • Inability to perform the function(s) can be reasonably accommodated.

If an agency temporarily suspends an essential function, depending on the position the employee might:

  • Continue to perform the remaining functions of the job;
  • Be assigned other tasks;
  • Perform the functions of a different job into which the employer temporarily transfers them; or
  • Participate in the employer’s light duty program.

These distinctions aren’t all, however. Another significant difference exists in the agency’s interactive process obligations. For a detailed explanation on that, you’ll want to join us on April 11 for Up to the Minute: The Latest Changes to Reasonable Accommodation for Pregnancy, Disability, and Religion.

Have a question? Ask FELTG.

The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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