Pregnant Workers Fairness Act (PWFA)

The PWFA protects employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions; it applies only to accommodations. Final rules implementing the PWFA became effective June 18, 2024. Employers with 15 or more employees are covered by the PWFA.

Existing laws that the Equal Employment Opportunity Commission (EEOC) enforces, such as the Pregnancy Discrimination Act, make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions, but don't require accommodations.

Under the PWFA, limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make.

Related medical conditions must relate to pregnancy or childbirth of the specific individual. They can include lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome, sciatica, carpal tunnel syndrome, migraines, dehydration, anxiety, loss of balance, varicose veins, and menstruation, to name only some.

Note: Federal courts have enjoined the EEOC from enforcing the PWFA rules in relation to elective abortions.

Reasonable accommodations are changes to the work environment or the way things are usually done at work. Some examples of accommodating pregnancy, childbirth, or related medical conditions include:

• Permission to sit or drink water;
• Closer parking;
• Flexible hours;
• Appropriately sized uniforms and safety apparel;
• Additional break time to use the bathroom, eat, and rest;
• Leave or time off to recover from childbirth; and
• Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Qualified employees and applicants are entitled to receive accommodations. Employees or applicants can be “qualified” under the PWFA in two ways.

• First, an employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified.

“Essential functions” are the fundamental duties of the job. Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water.

• Second, if an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job as long as:
  • The inability is “temporary;”
  • The employee could perform the functions “in the near future;” and
  • The inability to perform the essential functions can be reasonably accommodated.

The determination of whether an employee can perform the functions in the near future is made on a case-by-case basis. If the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension. An accommodation can include the suspension of an essential function.

This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be entitled to such a change as a reasonable accommodation. Leave can also be a reasonable accommodation.

Employees must communicate that they have a limitation — a physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition — and that they need an adjustment or change in their working conditions due to the limitation. Employees don't have to use any particular words or forms.

Once employers know of such a limitation and accommodation need, they should engage in the “interactive process” with the employee or applicant. They should talk to the employee about the known limitation and the adjustment or change needed at work.

Since employees often tell their managers or supervisors about such accommodation needs, managers and supervisors should be trained in how to recognize such requests and how to respond.

Employers must provide the following accommodations without delay or documentation:

• Carrying or keeping water near and drinking, as needed;
• Allowing additional restroom breaks, as needed;
• Allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and
• Allowing breaks to eat and drink, as needed.

These are a small set of simple, inexpensive, commonly sought accommodations that are widely known to be needed during an uncomplicated pregnancy, and where documentation would not be easily obtained or necessary. These will not pose an undue hardship.

For other accommodation requests, employers may ask for supporting documentation only when reasonable and when the condition or accommodation need is not obvious.

Documentation is not reasonable if:

• The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.
• The employer already knows about the limitation and the adjustment or change at work due to the limitation. If, for example, the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, the employer cannot demand a new doctor’s note every time the employee uses the accommodation of coming in later.
• The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing.
• The employee is lactating and needs modifications to pump at work or nurse during work hours.
• The employer would not ask an employee for documentation in that situation normally. If an employer’s policy is that employees only need a note from a health care provider for absences if they are missing three or more days in a row, the employer can’t require someone who needs a reasonable accommodation of one day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.

When employers are allowed to get documentation from a health care provider, they are limited to documentation that:

• Explains the health care provider’s qualifications and why they can provide the necessary information for this patient. A brief statement is sufficient. The provider does not need to be treating the condition at issue, as long are they are familiar enough with the patient’s circumstances to provide appropriate information.
  • Under the PWFA, health care professionals include, but are not limited to: doctors, nurses, nurse practitioners, physician assistants, midwives, physical therapists, and licensed mental health professionals. The health care provider may be a telehealth provider.
• Confirms that the employee has a physical or mental condition. Because the PWFA covers a wide range of physical or mental conditions, the provider does not need to include a diagnosis; a simple statement of the employee's physical or mental condition is sufficient. The problem or impairment may be minor, modest, or episodic (like fatigue, vomiting, or swelling, need for rest,); a need to attend health care appointments; or maintaining the patient’s health or the health of their pregnancy (like avoiding extreme heat, lifting restriction, or limiting exposure to chemicals).
• Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition.
• Describes the adjustment or change that is needed at work due to the limitation, including the expected duration of the accommodation. For example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time. If the change is the temporary suspension of a main job duty, it should make clear that the suspension will be temporary and that the employee could perform the job duty after the pregnancy or in the near future (and include an estimate of when that will be).

Employers should avoid using forms like FMLA certification forms or ADA forms to gather documentation, as they tend to ask for more information than needed. Whatever forms are used, employers should be prepared to have health care providers indicate that some entries or entries are not applicable.

Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.

Employers may not:

• Require an employee to accept an accommodation without a discussion with the employee about the accommodation (the interactive process),
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation,
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working,
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation), or
• Interfere with any individual’s rights under the PWFA.

What are reasonable accommodations?

• Reasonable accommodations are changes made to the workplace that allow employees to perform a job.
• Reasonable accommodation is a key nondiscrimination requirement of the ADA.

Reasonable accommodations are changes made to the workplace, how work is done, company policies, and so on, that would allow an employee to perform the job or an applicant to proceed in the hiring process. Accommodation ideas are limited only by the imagination.

Accommodations can be grouped into some categories, such as:

• Providing equipment or accessible materials,
• Making changes to the workplace,
• Restructuring the job,
• Modifying work schedules,
• Allowing remote work,
• Providing leave,
• Modifying policies,
• Modifying supervisory methods, and
• Reassignment (which is a last resort).

Reasonable accommodation is a key nondiscrimination requirement of the Americans with Disabilities Act (ADA). Employers must provide reasonable accommodations to the known disability of an employee or applicant. Employers that fail to provide an accommodation risk a discrimination claim. This may be true even if no other negative employment action is taken.

The ADA defines an “individual with a disability” as someone who meets all prerequisites for performing the essential functions of a job except any that cannot be met because of a disability. Individuals who meet this definition are entitled to a reasonable accommodation that will enable them to perform the essential functions of a job, or be considered, or receive equal benefits, etc., unless it would impose an undue hardship on the operation of the business. Employers are not, however, required to provide an accommodation to someone who is only “regarded as” having an impairment.

In general, it is the responsibility of the applicant or employee with a disability to inform an employer that an accommodation is needed to participate in the application process, perform essential job functions, or receive equal benefits and privileges of employment. Employers are not required to provide an accommodation if they are unaware of the need.

Sometimes, however, a disability or the need for an accommodation will be obvious. Other times, employees will present with restrictions, such as a doctor’s note or a simple statement they make. Such a presentation would likely be considered a request for reasonable accommodation.

Overall accommodation process

• Employers should understand and document the overall accommodation process.
• It is vital that employers know how to recognize accommodation requests.
• The interaction process is meant to be ongoing.

To help lay the groundwork for dealing with reasonable accommodation situations, employers should understand and document the overall process. This includes crafting written policies and procedures, training managers and supervisors, informing all employees, recognizing and responding to accommodation requests, creating a process for determining effective accommodation requests, and monitoring the accommodations.

Craft written policies and procedures

When crafting related policies and procedures, employers should consider factors such as:

• Company culture;
• Desired outcomes;
• Who has input;
• Who will be responsible for the policy, procedure, and process; and
• The reasons behind them.

To help craft effective policies and procedures, employers should:

• Talk to stakeholders for input on crafting the policies and procedures;
• Listen to what they have to say and ask questions;
• Keep the policies flexible and easy to understand;
• Try to avoid jargon, acronyms, and legal-speak;
• Work to ensure that they inform the reader effectively; and
• Include definitions of terms used and resources available, including where to find additional information.

Train managers and supervisors

While training supervisors and managers regarding the Americans with Disabilities Act (ADA) and reasonable accommodations is not mandated by law, doing so can help protect the company should it face a claim. Initial training is a good start, but because ADA-related situations do not arise frequently and the training is eventually lost, refresher training should be done regularly.

Two of the vital pieces of the ADA that managers and supervisors should be trained on are:

• How to recognize a request for a reasonable accommodation, and
• That applicant and employee medical information is to be kept confidential.

One of the purposes of the training should be to enable all employees to gain optimum job performance and productivity levels through the application of reasonable accommodations. The training also helps demonstrates that the company takes disability inclusion seriously.

Inform all employees

Employers should let all affected employees know about the ADA, even if at different levels of detail. While employees might not benefit from knowing the details of what the ADA requires, they would benefit from knowing how to request accommodations and what to expect.

Recognize and respond to accommodation requests

Employers and managers and supervisors should be able to recognize when an applicant or employee requests an accommodation. At the most basic level, an accommodation request is when an applicant or employee asks for a workplace change or adjustment because of a medical condition. The request does not need to include any particular terms, such as “ADA” or “accommodation.”

Create an interactive process for identifying effective accommodations

The interactive process is when a company representative and an applicant or employee work together focusing on identifying an effective reasonable accommodation. Shutting down this process, or not starting one, can be considered discrimination, and many court cases have included such actions.

Interactive process

• The interactive process is when employers and employees work together to find a reasonable accommodation.
• The ADA does not have a formula or prescribed method for an interactive discussion.
• Employees and employers are required to engage in the interactive process.

When an employee requests an accommodation, an employer’s Americans with Disabilities Act (ADA) obligations are triggered, including the interactive process. The interactive process is when employers and employees who request accommodations work together to identify an effective reasonable accommodation. Employers should engage in this process even if they believe the request is unreasonable or the employee is not qualified for the position.

Before engaging in the interactive process, it may be beneficial to review the employee’s position description to ensure that:

• The description accurately reflects the essential functions of the position;
• Quality and quantity requirements are stated, if appropriate;
• Behavioral factors necessary for the job are considered in measurable terms; and
• An ADA job evaluation has been performed, noting how the physical duties are functionally performed and the behavioral characteristics essential for job performance.

The ADA does not have a formula or prescribed method for an interactive discussion between the employer and the individual after a change due to a medical condition has been requested. The exact nature of the dialogue will vary.

While not mandated, the basic interactive process can include the following:

1. Recognizing an accommodation request,
2. Gathering information,
3. Exploring accommodation options,
4. Choosing an accommodation,
5. Implementing the chosen accommodation, and
6. Monitoring the accommodation to ensure it continues to be effective.

In many instances, both the disability and the type of accommodation required will be obvious, and there may be little or no need for discussion.

In other situations, the disability and/or the need for accommodation may not be obvious, and to identify an effective accommodation, employers may need to:

• Ask questions concerning the nature of the disability and the individual’s functional limitations; or
• Ask for reasonable documentation about the employee’s or the applicant’s disability and limitations, meaning only documentation that establishes:
  • A person has an ADA disability, and
  • The disability necessitates a reasonable accommodation.

Recognizing accommodation requests

When an individual makes it known that an adjustment or change is needed at work due to a medical condition and a work-related barrier, this is an accommodation request under the Americans with Disabilities Act (ADA).

Employees or applicants may ask for an accommodation in a variety of ways. They might, for example,

• Allude to the need for accommodation during ordinary workplace conversations, or
• Provide a doctor’s note that excuses absences for a medical reason or places restrictions on their ability to perform certain job tasks.

The request does not need to mention terms like “ADA” or “reasonable accommodation,” and it does not need to be in writing. An employer may, however, ask for something in writing to document the request.

Under the ADA, individuals may request an accommodation at any time during the application process or while they are employed. They can request an accommodation even if they did not ask for one when applying for a job or after receiving a job offer. Once employees or applicants request an accommodation, employers must:

• Respond appropriately
• Discuss the individual’s needs
• Identify the appropriate reasonable accommodation

If employers are unsure whether an employee has requested an accommodation, they may ask for clarification on what is being requested and why.

Managers and supervisors may need to be able to recognize an accommodation request, as they are usually on the front line working with employees.

While employers are not required to ask whether a reasonable accommodation is needed when an employee has not asked for one, they may still ask if they reasonably believe that the employee may need an accommodation. Also, employers should initiate the reasonable accommodation interactive process without being asked if they:

• Know the employee has a disability;
• Know, or have reason to know, that the employee is experiencing workplace problems because of the disability; and
• Know, or have reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

If employees state that they do not need a reasonable accommodation, employers will have fulfilled their obligation.

As important as it is to recognize a request for accommodation, employers must also know what is not considered a request for accommodation under the ADA. It is not, for example, a request for accommodation when:

• An applicant voluntarily self-identifies as an individual with a disability for affirmative action purposes under Section 503 of the Rehabilitation Act, or
• An employee discloses a disability, but there is no connection to a work-related barrier or specific request.

Gathering information

Once an accommodation request is received, employers may gather information necessary to process the request. Employers may ask questions to help make an informed decision. This includes asking what type of reasonable accommodation is needed.

While individuals with disabilities do not need to be able to specify the precise accommodation, they do need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individuals with disabilities may assist in determining the type of reasonable accommodation to provide.

If the disability and/or the need for accommodation is not obvious, employers may ask for reasonable documentation about the disability and functional limitations. Employers may require only the documentation that is needed to establish that a person has an ADA disability and that the disability necessitates a reasonable accommodation.

Questions to consider during the process include:

• What limitations is the employee experiencing?
• How do these limitations affect the employee and the employee’s job performance?
• What specific job tasks are problematic because of these limitations?
• What accommodations are available to reduce or eliminate these problems?
• Are all possible resources being used to determine possible accommodations?
• Has the employee been consulted regarding possible accommodations?
• Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and determine whether additional accommodations are needed?
• Do supervisory personnel and employees need training?

Employees are required to engage in the interactive process as well as employers. Part of this process could include providing information for an employer to determine the extent of the employee’s disability and the breadth of potential accommodations that might be reasonably afforded. If employees fail to participate, their ADA protections could be at stake.

Exploring accommodations

Once employers have identified an employee’s workplace issue and the limitation causing it through the interactive process, they are ready to explore accommodation options. This is the time to brainstorm and consider what might work, and employers should be open to new ideas and ways of doing things.

The employee who requested the accommodation is a good place to start, so employers should always invite the employee to suggest accommodations. If more accommodation ideas are needed, they may ask the employee’s medical provider for ideas. In some cases, medical professionals can suggest effective accommodations. In other cases, they may not be able to suggest ideas, but may be able to say whether ideas under consideration will help overcome the employee’s limitations.

If employees know of an accommodation that will allow them to perform the essential functions of the job, they must share it. Reasonable accommodations must be determined on a case-by-case basis because workplaces and jobs, like people, vary. Not all people with disabilities, or even all people with the same disability, will require the same accommodation.

Accommodations may involve:

• Changes to workplace policies, procedures, or practices;
• Physical changes to the workplace; or
• Extra equipment.

Types of accommodations can include:

• Providing leave or breaks,
• Making the work facility accessible,
• Providing personal assistance,
• Allowing service or emotional support animals,
• Providing interpreters, and
• Additional accommodations as technology advances.

Employers should look to many resources for input on identifying an effective accommodation, such as:

• The employee or applicant
• The individual’s health care provider
• Condition-specific agencies
• Other experts

A health care provider is not mandated to identify a reasonable accommodation, but might have some input on the employee’s limitations. Employers might not know if a particular accommodation will be effective, but should feel free to try one out on a temporary basis to see the results. If it works, great. If not, look for another that will be effective.

Choosing an accommodation

Although not required by the Americans with Disabilities Act (ADA), choose the employee’s preference whenever possible if there are multiple accommodation options. The employer, however, makes the decision and may choose, for example, the lowest-cost accommodation so long as the chosen accommodation is effective.

When an accommodation is identified, implement it by:

• Installing equipment,
• Providing training,
• Informing managers or supervisors,
• Involving outside services, or
• Communicating with essential personnel about the accommodation.
  • ADA confidentiality rules dictate that only managers and supervisors should know about the accommodation, if necessary.

Employers are free to provide an accommodation on a trial basis and stop it if it does not work. One thing they might consider when testing accommodations is to make a written agreement, or at least a memo, with the employee that:

• The accommodation is being tested,
• How long the test will be, and
• What will happen if the accommodation does not work.

That way, no one is surprised when the accommodation is revisited down the road.

Monitoring the accommodation

Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. If equipment is involved in the accommodation, someone may need to perform maintenance or upgrades as needed. Encouraging ongoing communication is the most important way to monitor accommodations, and employees who are receiving accommodations need to understand:

• That they should let their employer know if there are changes or problems with the accommodation, and
• Who, specifically, to contact.

A common misconception is that once an effective accommodation is implemented, the decision is final. The interactive process, however, is meant to be ongoing. Accommodations are not guaranteed to last forever, and there are times when some maintenance or adjustments may be needed. Employers should make sure to reassess whether the chosen accommodation remains effective and encourage the employee or applicant to let them know if the accommodation’s effectiveness begins to decrease. At this phase, employers should restrict questions about the condition and focus on the solution and its level of effectiveness.

Accommodations are individualized and may be continuous or temporary. Even a long-term reasonable accommodation may not be permanent. If an accommodation no longer meets the disability-related need or begins to pose a hardship, employers are obligated to explore alternative ideas. Of course, with all related actions, they should document what was done, when, why, where, how, etc.

Types of accommodations

• Employers have many accommodation ideas from which to choose.

Accommodation ideas are limited only by the imagination. Some accommodation ideas include:

• Providing/Modifying equipment
• Providing accessible materials
• Making changes to the physical workplace
• Restructuring jobs
• Modifying work schedules
• Providing breaks
• Allowing remote work
• Modifying supervisory methods
• Allowing service or emotional support animals
• Reassigning the employee
• Providing transportation
• Modifying tests, exams, or training
• Providing qualified readers
• Providing interpreters
• Providing leave Reassignment to a different position is a last resort accommodation.

An employee’s limitation will generally dictate the accommodation. For example, an employee with long COVID might have shortness of breath with exertion. Accommodations might, therefore, include the following:

• Reduce physical exertion;
• Allow rest breaks;
• Reduce workplace triggers, if any;
• Allow time for medical treatment such as use of a nebulizer or inhaler;
• Restructure the job to remove marginal job functions; or
• Develop an action plan to deal with sudden exacerbations.

An employee who suffers from fatigue might benefit from the following accommodations:

• Allow rest breaks,
• Provide an ergonomic workstation,
• Allow a flexible schedule, or
• Restructure the job to remove marginal job functions.

Employees who deal with brain fog (for example caused by long COVID), might need the following accommodations:

• Provide a quiet work space;
• Allow use of noise cancellation or white noise;
• Provide uninterrupted work time;
• Provide memory aids such as flowcharts and check lists;
• Allow the use of apps for concentration, memory, and organization;
• Allow rest breaks; or
• Restructure the job to remove marginal functions to allow focus on essential job duties.

The following accommodations might be effective for employees with headaches:

• Reduce workplace triggers, if any;
• Provide alternative lighting;
• Reduce glare; or
• Allow flexible scheduling.

A particular conditions does not mean that a limited list of effective accommodations is available. Much will depend upon the employee’s particular limitations in relation to the job’s essential functions. Identify the barriers between them and find ways to break the barriers down or eliminate them.

Employees with mobility limitations might need to have the workplace be made more accessible. Someone with a hearing impairment might need a translator. Each situations must be dealt with on its own merits. That’s why the interactive process is so important; it deals with the specific facts involved.

Providing/Modifying equipment

Purchasing equipment or modifying existing equipment is a form of reasonable accommodation. All employees need the right tools and work environment to effectively perform their jobs. Similarly, individuals with disabilities may need workplace adjustments to maximize the value they can add to the organization.

Many devices are available that make it possible for people to perform essential job functions. These devices range from very simple solutions, such as an elastic band that can enable a person with cerebral palsy to hold a pencil and write, to “high-tech” electronic equipment that can be operated with eye or head movements by people who cannot use their hands.

Employers are obligated to provide only equipment that is needed to perform a job; there is no obligation to provide equipment that the individual uses regularly in daily life, such as glasses, a hearing aid, or a wheelchair. However, employers may be obligated to provide items of this nature if special adaptations are required to perform a job.

Providing accessible materials

Employers may have to make written materials accessible to an individual with a disability who may not be able to read or understand them. Simple accommodations could include having someone read a list of employee conduct rules to an employee with a visual impairment or providing a simpler explanation of the rules for an employee with a cognitive disability.

Making changes to the workplace

Making changes to the facilities or work areas is a form of reasonable accommodation. This includes the physical barriers covered by the ADA accessibility standards. Employers need to make existing facilities used by employees readily accessible for employees with disabilities, such as making work areas accessible for approach, entry, and exit so people using wheelchairs can enter and back out of the area. This includes working areas as well as non-working areas such as break rooms, lunchrooms, training rooms, and restrooms.

Restructuring the job

Job restructuring includes shifting responsibility to other employees for minor tasks (or “marginal functions”) that an employee is unable to perform because of a disability and altering when and/or how a task is performed. It may involve reallocating or redistributing the marginal functions of a job. However, employers are not required to reallocate essential functions of a job as a reasonable accommodation under the ADA. Essential functions, by definition, are those that a qualified individual must perform, with or without an accommodation. If the workforce is small and all workers must be able to perform a number of different tasks, job restructuring may not be possible.

Even though the ADA does not require employers to reallocate essential functions as a reasonable accommodation, they may do so if they wish. An individual may be reassigned to a lower-graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified (with or without a reasonable accommodation).

Employers are not, however, required to maintain the reassigned individual with a disability at the salary of a higher-rated position if employers do not do so for reassigned employees who do not have a disability. It should further be noted that employers are not required to promote an individual with a disability as an accommodation.

Modifying work schedules

Modifying work schedules may involve adjusting arrival or departure time, providing periodic breaks, or altering when certain job tasks are performed. Employers should consider modification of a regular work schedule as a reasonable accommodation unless this would cause an undue hardship. Modified work schedules may include flexibility in work hours or the workweek, or part-time work, where this will not be an undue hardship.

A modified schedule may also involve allowing an employee to use accrued paid leave or providing additional unpaid leave. Employers must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if they do not provide such schedules for other employees.

Providing breaks

Providing an employee with breaks can be seen as a reasonable accommodation involving a modified work schedule. Sometimes, however, breaks can be short and rather infrequent, not really reaching the level of a schedule change.

Working from home (Telework)

Many employers have discovered the benefits of allowing employees to work from home through telework (also known as telecommuting) programs, particularly since the COVID-19 pandemic.

Not all persons with disabilities need — or want — to work from home, and not all jobs can be performed at home. However, allowing an employee to work at home may be a reasonable accommodation where the person’s disability prevents successfully performing the job on-site and the job, or parts of the job, can be performed at home without causing significant difficulty or expense. To deny a request to work from home, employers must be able to show that attendance is an essential function for the particular job in question.

If an employee is working from home for a certain period, perhaps during a pandemic, you may ask employees if they will need reasonable accommodations in the future when they return to the workplace. Employers may ask employees with disabilities to request accommodations that they believe they may need when they return to the physical workplace, basically by beginning the interactive process.

Before allowing anyone to return to work (or even after they do return), employers may make information available to all employees about who to contact — if they wish — to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. If requests are received in advance, you may begin the interactive process.

Modifying supervisory methods

Simple modifications of supervisory methods may include communicating assignments in writing rather than orally for someone whose disability limits concentration or providing additional day-to-day guidance or feedback. Employers are not required, however, to change someone’s supervisor.

Making policy modifications

Modifying a workplace rule because of an employee’s disability may be a form of reasonable accommodation. Reasonable accommodation requires only that you modify the policy for an employee who requires such action because of a disability; however, you may continue to apply the policy to all other employees.

Granting time off or adjusting a work schedule may involve modifying leave or attendance procedures or policies. Similarly, you may need to modify a policy prohibiting animals in the workplace so that a visually impaired person can use a guide dog.

Allowing service animals or emotional support animals

Another type of accommodation is to allow employees to bring service animals or emotional support animals to work with them. Many individuals with disabilities use animals to help them perform some functions. Most people are familiar with seeing-eye dogs, for example.

A service animal and an emotional support animal are defined differently and apply in different situations. A service animal is specifically defined by the public accessibility provisions of the ADA, but not in the employment provisions.

An emotional support animal, on the other hand, is a companion animal that provides therapeutic benefit to an individual with a disability. Since the employment provisions of the ADA do not define a service animal or restrict accommodations to service animals as defined for public accessibility, employers may have to consider allowing an employee to bring an animal that does not meet the definition of a service animal into the workplace. This could include a therapy or emotional support animal. However, employers don’t have to allow an employee to bring any animal into the workplace if it is not needed because of a disability or if it disrupts the workplace or otherwise poses an undue hardship.

Even if employers have a no-pet policy, allowing a service or emotional can be a reasonable accommodation, because making exceptions to workplace policies can be an accommodation.

Service animals assist persons with a variety of disabilities in their day-to-day activities. Some examples include the following:

• Alerting persons with hearing impairments to sounds.
• Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.
• Assisting persons with mobility impairments with balance.

Service animals are not pets — they perform some of the functions that people with disabilities cannot do for themselves.

Some service animals, but not all, wear special collars, harnesses, or other identification signaling that it is a service animal and not a pet. Some, but not all, are licensed or certified and have identification papers.

No registry of service animals exists, so you can’t simply look up whether a particular service animal is registered.

Reassigning the employee

Reassignment is generally the reasonable accommodation of last resort. Reassignment may be necessary where an employee can no longer perform his or her job because of a disability. The employee must be qualified for the new position, however. This means that the employee

• Satisfies the skill, experience, education, and other job-related requirements of the position, and
• Can perform the primary job tasks of the new position, with or without reasonable accommodation.

The employee does not need to be the best qualified individual for the position.

Providing transportation

Other forms of accommodation may involve making transportation provided by the employer accessible. Employers must consider accommodations related to commuting problems. It does not matter if the employee is fully able to perform his job without the need for accommodations once he or she gets to work.

Generally, it is not always an employer’s responsibility to provide an employee with transportation to and from work. However, an employee’s disability may interfere with his or her ability to get to work.

Modifying tests, exams, or training

Employers may be required to modify, adjust, or make other reasonable accommodations in the ways that tests and training are administered in order to provide equal employment opportunities for qualified individuals with disabilities.

Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions, rather than reflecting limitations caused by the disability. The ADA requires that tests be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless that is the job-related skill the test is designed to measure.

Employers have an obligation to inform job applicants in advance that a test will be given, so that an individual who needs an accommodation can make such a request.

Providing qualified readers

When an applicant or employee has a visual disability, employers and the individual should use the interactive process to identify specific limitations of the individual in relation to specific needs of the job and to assess possible accommodations. It may be a reasonable accommodation to provide a reader for an individual with a disability, if this would not impose an undue hardship.

In some job situations, a reader may be the most effective and efficient accommodation, but in other situations alternative accommodations may enable an individual with a visual disability to perform job tasks just as effectively.

Where reading is an essential job function, depending on the nature of a visual impairment and the nature of job tasks, print magnification equipment or a talking computer may be more effective and less costly than providing another employee as a reader. Where an individual has to read lengthy documents, a reader who transcribes documents onto tapes may be a more effective accommodation.

Providing interpreters

Providing an interpreter on an “as-needed” basis may be a reasonable accommodation for a person who is deaf in some employment situations, if this does not impose an undue hardship.

A person who with a hearing impairment should be able to communicate effectively with others as required by the duties of the job. Identifying the needs of the individual in relation to specific job tasks will determine if or when an interpreter may be needed. The resources available to employers would be considered in determining whether it would be an undue hardship to provide such an accommodation.

People with hearing impairments have different communication needs and use different modes of communication. Some use signing in American Sign Language (ASL), but others use sign language that has different manual codes. Some people rely on an oral interpreter who silently mouths words spoken by others to make them easier to lip-read. Many hearing-impaired people use their voices to communicate, and some combine talking and signing. The individual should be consulted to determine the most effective means of communication.

Leave as an accommodation

• Allowing an employee to take leave can be a form of reasonable accommodation.
• Leave provided under the ADA is job protected.
• Leave can be provided as an accommodation when no other accommodations are effective.

Allowing an employee to use accrued paid leave and providing additional unpaid leave can be a form of reasonable accommodation. Such leave could be in large blocks of time or on an intermittent or reduced schedule basis.

Similar to the Family and Medical Leave Act (FMLA), leave provided under the Americans with Disabilities Act (ADA) is job protected, but the ADA does not include an “equivalent” position provision; employers are expected to return employees to the jobs they had before leave began. The concept of leave as an accommodation might be confusing because it doesn’t align with the idea of providing an accommodation that keeps an employee on the job. The goal in allowing the use of leave, however, is to provide an employee the opportunity to manage the condition and ultimately remain in the workforce.

Leave could be provided as an accommodation when:

• No other accommodation is effective,
• The employee is not eligible for leave under the FMLA or has exhausted the FMLA leave, or
• The employee has exhausted paid time off and required additional leave.

If employers have a leave policy, they should ensure it is flexible. If, for example, they provide employees with up to three months of company leave for a medical condition, but a particular employee needs three months and two weeks of leave, they would need to consider allowing the additional two weeks as a reasonable accommodation. Generally, if the leave does not pose an undue hardship, employers might have a hard time arguing why they did not provide it. An inflexible leave policy can risk a very expensive claim, as such policies would apply to all employees, constituting a systemic issue.

How much leave is reasonable remains a matter of debate. At least one court, the 7th Circuit, has ruled that extended leave is not reasonable. Perhaps a few weeks or intermittent leave would be in that jurisdiction.

Otherwise, the amount of leave is limited only by how much leave would prove to be an undue hardship.

Unlimited leave, however, is not considered reasonable. If an employee is unable to provide at least an estimated return-to-work date, employers need not provide the leave as an accommodation.

Undue hardship

• Employers do not have to provide a particular accommodation if it would pose an undue hardship.
• Employers should try to find another accommodation that would not pose an undue hardship.

Employers must provide a reasonable accommodation if a person with a disability needs one to apply for a job, perform a job, or enjoy benefits equal to those offered to other employees. Employers do not, however, have to provide any accommodation that would pose an undue hardship.

Undue hardship means that providing the accommodation would result in significant difficulty or expense, based on an employer’s resources and the operation of the business. While the “undue hardship” provision considers the financial realities of the particular employer, the concept of an undue hardship is not limited to financial difficulty and may refer to any accommodation that would be:

• Excessively costly
• Extensive
• Substantial
• Disruptive
• Fundamentally altering the nature or operation of the business

Determinations of undue hardship must be based on an individualized assessment of current circumstances that show a specific reasonable accommodation would cause significant difficulty or expense. If providing a particular accommodation would result in undue hardship, employers should consider whether another accommodation exists would not.

Employers may not claim undue hardship based on employees’ or customers’ fears or prejudices toward the individual’s disability. Similarly, undue hardship cannot be claimed because providing the accommodation might have a negative impact on the morale of other employees. Employers may, however, be able to show undue hardship where providing an accommodation would be unduly disruptive to other employees’ ability to work.