The Pregnant Workers Fairness Act: What Your Business Needs to Know

PWFA: Overview and employer compliance considerations

The Pregnant Workers Fairness Act (PWFA) is a new law that was adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023. The PWFA will go into effect on June 27, 2023. Below is a summary of the new law and employer compliance information.

What is the Pregnant Workers Fairness Act?

The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” The PWFA applies only to accommodations. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.

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.  This law applies to the private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.

What are some examples of reasonable accommodations for pregnant workers?

“Reasonable accommodations” are changes to the work environment or the way things are usually done at work. 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; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

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

PWFA compliance tips

• Review and update accommodation policies to ensure compliance with the PWFA
• Train Human Resources and management personnel involved in evaluating accommodation requests to ensure they understand the requirements of the PWFA
• Identify the “essential functions” of positions to determine if they may be restructured or amended temporarily for a pregnant employee in need of a reasonable accommodation, and consider documenting essential functions in job descriptions
• Consider what types of temporary light duty assignments may be offered to pregnant employees in need of a reasonable accommodation; and
• Consider asking pregnant employees about their accommodation preferences and do not assume that a pregnant employee wants leave as an accommodation (even if paid)

What other federal laws may apply to pregnant employees?

Other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:

• The PUMP Act
  • Broadens existing employer obligations under the Fair Labor Standards Act
  • Provides workplace protections for employees to express breast milk at work
  • Changes will take effect on April 28, 2023
• Title VII of the Civil Rights Act
  • 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 (Americans with Disabilities Act)
  • 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
  • Provides covered employees with unpaid, job-protected leave for certain family and medical reasons