Effective June 27, 2023, The Pregnant Workers Fairness Act (PWFA) is a new law that requires covered employers to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions. Covered employers include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. Employers should provide accommodations unless the accommodation will cause the employer an undue hardship. An undue hardship is defined as a significant difficulty or expense for the employer.
The PWFA applies only to accommodations. There are existing laws that the US. Equal Employment Opportunity Commission (EEOC) enforces, that make it illegal to terminate or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant employees.
Here are some important FAQs for your company to consider:
1. Who does the PWFA protect?
The PWFA protects employees and applicants of covered employers who have known limitations related to pregnancy, childbirth or related medical conditions.
2. Can employers place employees impacted by pregnancy or childbirth on leave as an accommodation?
When a different reasonable accommodation option is available, the PWFA prohibits employers from placing an employee impacted by pregnancy, childbirth, or related medical conditions on a leave of absence, either paid or unpaid.
3. What else does the PWFA prohibit?
Covered employers cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- 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.
4. What are some examples of reasonable accommodations to consider?
The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including:
- the ability to sit or drink water;
- provide closer parking;
- offer flexible working hours;
- receive appropriately sized uniforms and safety apparel;
- receive additional break time to use the restroom, eat, and/or rest;
- take leave or time off to recover from childbirth; and
- excusing employees from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
5. What other federal laws may apply to pregnant workers?
Other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:
- Title VII (enforced by the EEOC), which:
- Protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and
- Requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
- The ADA (enforced by the EEOC), which:
- Protects an employee from discrimination based on disability; and
- Requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer.
- While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
- The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and
- The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.
6. Is the EEOC accepting charges under the PWFA?
The EEOC started accepting charges under the PWFA on June 27, 2023. For the PWFA to apply, the situation complained about in the charge must have happened on or after June 27, 2023. The EEOC will analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA and, where applicable, under the ADA and/or Title VII.
7. What should your company do to comply with PWFA?
If your company is in business in a state or city where employers are not currently required to offer reasonable accommodations to employees who are pregnant or recently gave birth, now is the time to get to work. If you already offer such protections due to a state or local law, or have a more generous policy in place, you should still use this as an opportunity to review your policies and practices to ensure they are compliant.
- You should expand your accommodations review process to include requests related to pregnancy, childbirth, and related medical conditions. This could include necessary revisions to any written documents or forms you use as part of the interactive or accommodation process.
- As a best practice, ensure your company is conducting an interactive process with those employees or applicants who are seeking an accommodation; the PWFA requires it as a matter of law.
- Expand your mandatory HR trainings to include a discussion of these new laws so that your managers and employees understand their rights and obligations under the law.
- Review any written policies related to accommodations and incorporate the new obligations as necessary.
Employers should proceed with caution when handling accommodation requests under the PFWA. If your business has questions or needs assistance navigating the new PWFA requirements, our team of Human Resources professionals are happy to help!
“What You Should Know about the Pregnant Workers Fairness Act.” US EEOC, www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act#q4. Accessed 2 Aug. 2023.
