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Accommodations for Lactation, Pregnancy, Childbirth, or Related Medical Conditions

For at least one year after their child's birth, lactating Ů�źϼ� employees have the right to reasonable breaks throughout the day to lactate in a space that is available, as needed, shielded from view, free from intrusion, functional for pumping milk (if expressing milk through pumping), and not a bathroom. If an employee works through a lactation break (for instance, if an employee is pumping and working on a computer at the same time), the employee should be paid for that time. No medical information is needed for basic lactation accommodations.

If an employee has more specific needs related to lactation or any other medical condition related to pregnancy or childbirth, those needs may be able to be accommodated through the individualized, interactive process required under the Pregnant Workers Fairness Act (PWFA). 

PWFA Predictable Assessments & Documentation

PWFA is that the regulations include “predictable assessments,” which are four types of accommodations that should generally be approved without any documentation other than an employee’s self-confirmation. These accommodations are:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee to take additional restroom breaks as needed;
• Allowing an employee to sit or stand as needed; and
• Allowing an employee to take breaks to eat and drink as needed.

Self-Confirmation
A self-confirmation, as described in the regulation, is a simple statement from an employee that confirms a limitation or limitations from pregnancy, childbirth, or related medical conditions and that requests an adjustment or change at work because of it. The EEOC advises that an employee’s self-confirmation can be made in any form or manner — from verbal notification to a handwritten note or email — and physical evidence or documentation is not required to support it. Employers cannot require employees to make a self-confirmation in a specific format, use specific words, or use a specific form. If employers require medical documentation to support requests for ADA accommodation, they must ensure this principle is not automatically applied to PWFA-related accommodation requests. At a minimum, employers must make clear to employees that documentation (other than self-confirmation) is not required for the four predictable assessments.

Reasonable Documentation
The EEOC also cautions that employers can only request documentation to support an accommodation request when it is reasonable to do so, and even then, the documentation requested must itself be reasonable.

In the final regulations, the EEOC notes that employers can require documentation only when it is reasonable under the circumstances to do so, and that the amount and nature of documentation requested must be reasonable. The agency also notes that when employees’ limitations and the accommodation requested are straightforward, employers should approve an accommodation after a single informational conversation or short email exchange. 

The EEOC has allowed a broad range of healthcare providers to supply medical documentation, including, but not limited to, midwives and doulas. 

Under PWFA regulations, “reasonable documentation” is the minimum amount needed to confirm there is a limitation arising from pregnancy, childbirth, or a related condition, and a description of the adjustment or change at work that is needed due to the limitation. The regulations also specify that employers may not require the submission of supporting documentation on a specific form.

Limitations Related to Pregnancy, Childbirth, or Related Medical Conditions
Under the PWFA, employees do not have to prove they have a disability. They only have to show they have limitations arising from pregnancy, childbirth, or related medical conditions, including any of the following: a problem or impediment that is modest, minor, and/or episodic; a need or problem related to maintaining their health or the health of the pregnancy; and seeking healthcare related to pregnancy, childbirth, or related medical conditions.

Reasonable Accommodations 
Under the PWFA, employers must grant reasonable accommodations for employees who are temporarily unable to perform one or more essential functions as long as they will be able to perform the function in the near future unless they can prove undue hardship. The regulations define “in the near future” as up to 40 weeks for accommodations related to a current pregnancy. For accommodations related to other conditions, “in the near future” must be determined on a case-by-case basis.

The PWFA makes it unlawful for employers to provide leave as an accommodation unless there is no other reasonable accommodation that can be provided without undue hardship that would allow the employee to keep working. The EEOC also advises that if employees request leave, employers must grant it as an accommodation absent undue hardship. 

Employers must provide effective accommodations that meet employees’ needs or limitations. If there is more than one effective accommodation, the regulation notes that employers have discretion to choose which option is best, though they should give employees’ preference primary consideration.

In its interpretive guidance, the EEOC advises that generally employers do not need to reduce production expectations as an accommodation under the PWFA. However, the EEOC also advises that if employees are granted extra breaks or leave under the PWFA, employers cannot penalize them for those accommodations, and employers must prorate production requirements to account for the period of leave or extra breaks. The EEOC also explains that if an accommodation removes an essential function and it negatively affects an employee’s ability to meet production requirements, employers may have to adjust requirements to avoid penalizing employees. 

Questions?
Contact the Ů�źϼ� HR Leave and Accommodations Group at ua-ada@alaska.edu.

Useful Links

• Title VII -
• Title IX -
• ADA -
• FMLA -
• PUMP Act -
• PDA -
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