For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work.

When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists).

In its final rules implementing the PWFA, the EEOC went to unusual lengths to rein in an employer’s ability to obtain medical documentation when an employee requests a pregnancy accommodation. The agency rejected the ADA’s more expansive approach to supporting documentation, instead allowing medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.

Is It Inappropriate to Request FMLA Medical Certification from an Employee Who Seeks Leave Due to Pregnancy Limitations?

In light of the PWFA’s limitations on medical certification, this is an obvious question.

I had the chance to take this question up directly with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas from the Job Accommodation Network in a webinar the three of us conducted in April.

As a reminder, employers should first exhaust all reasonable efforts to keep the employee in their current position or in a temporarily-reassigned position while she still has limitations due to pregnancy. As EEOC makes clear in its final rules, and as reinforced by Ms. Miaskoff, a leave of absence truly is the accommodation of last resort under the PWFA, as the key purpose of this new law is to keep employees on the job.

Step One: Seek FMLA Certification First

Not surprisingly, Ms. Miaskoff agreed that FMLA medical certification would be an acceptable tool to use first if an employee limited by pregnancy is seeking leave from work, or if leave is the only option available.

Easy enough. If an employee needs leave, we first seek FMLA medical certification, which likely will give us more information than we’d otherwise obtain through a streamlined PWFA certification.

Step Two: What Should an Employer Do if the Employee Does Not Return the FMLA Medical Certification?

If the employee returns the FMLA medical certification, all’s well. We make an FMLA and pregnancy accommodation decision based on the FMLA documentation.

But what’s the employer’s response if the employee fails to return the FMLA certification? Ms. Miaskoff’s take on this topic was instructive. She indicated that, at this point, the employer should:

  1. Remind the employee of the right to request a pregnancy accommodation; and
  2. Request that the employee provide basic documentation supporting their need for an accommodation.

Of course, Ms. Miaskoff isn’t offering the EEOC’s “official” position on this issue, but I think she offers some sound advice on this point, doesn’t she? When the employee fails to return medical certification, it seems to make a whole lot of sense to remind the employee that we remain open to discussing an accommodation that would help her perform essential job functions and encourage her to provide documentation supporting the need for an accommodation if she believes one is needed.

What Should This Pregnancy Accommodation Medical Documentation Look Like?

As an initial matter, the EEOC rejected adopting the ADA’s approach to supporting documentation. In other words, employers should not use your ADA medical certification form in a pregnancy accommodation situation.

In the final rule, the EEOC limits “reasonable documentation” to the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification.

Confirm. Confirm. Describe. Ideally, on a form no more than one to two pages in length.

Ask your preferred employment attorney for their model form!