Pregnant Workers Fairness Act: What Employers Need to Know
On June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) went into effect and expanded legal protections for pregnant workers by requiring employers to provide reasonable accommodations unless doing so would impose an “undue hardship” on the operation of the business. The new law applies to employers with 15 or more employees; employers with fewer than 15 employees may be subject to comparable requirements under state or local laws.
What Types of Conditions Are Covered By the PWFA?
Although pregnancy itself is not protected, the law covers “the known limitations related to the pregnancy, childbirth, or related medical conditions.” The PWFA defines the phrase‘‘known limitation’’ as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee… has communicated to the employer.”
PWFA does not require that the condition meets the criteria for a disability under the Americans with Disabilities Act (ADA), which already obligates employers to provide accommodations for pregnant workers with conditions that qualify as a disability, such as gestational diabetes. To qualify as disabled under the ADA, a pregnant worker must have a physical or mental impairment that substantially limits one or more major life activities. This means that the PWFA provides protections for a much broader array of pregnancy-related conditions that do not qualify as disabilities but still impact a pregnant employee’s ability to work comfortably and productively.
What is a “Reasonable Accommodation” Under the PWFA?
The PWFA adopts the ADA's definition of “reasonable accommodations” as adjustments or modifications provided by employers to ensure that disabled individuals have equal opportunities to perform their jobs effectively. Examples of reasonable accommodations under the ADA include making existing facilities accessible to individuals with disabilities or modifications to job functions and work schedules.
The PWFA requires that the Equal Employment Opportunity Commission (EEOC) set forth regulations that “provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions” within a year of the law’s enactment.
Although these regulations have not yet been issued, the EEOC’s website (What You Should Know About the Pregnant Workers Fairness Act) states that examples of potential reasonable accommodations include:
Allowing the pregnant worker to sit or drink water as needed
Providing closer parking and appropriately sized uniforms and safety gear
Offering flexible hours, additional break time, and leave
Excusing pregnant workers from strenuous tasks and activities that involve exposure to unsafe compounds
What is an “Undue Hardship” Under the PWFA?
The PWFA provides that an employer may be exempt from the requirement to offer reasonable accommodations to pregnant workers if doing so would impose an “undue hardship.” As with the definition of “reasonable accommodation,” the definition of “undue hardship” under the PWFA also mirrors the ADA.
Under the ADA, “the term ‘undue hardship’ means an action requiring significant difficulty or expense.” When determining whether an accommodation would impose an undue hardship on an employer, the factors to be considered include:
The nature and cost of the accommodation
The overall financial resources of the facility
The number of people employed at the facility
The effect the accommodation would have on the operation of the facility
The overall financial resources of the employer
The overall size of the business with respect to the number of its employees
The number, type, and location of the employer’s facilities
The type of operation of the employer, including the composition, structure, and functions of the workforce
The geographic separateness, administrative, or fiscal relationship of the facility in question to the employer
What Employer Actions Does the PWFA Prohibit?
Besides the showing of an undue hardship, the PWFA prohibits an employer from failing to make reasonable accommodations to a pregnant worker for the known limitations related to pregnancy, childbirth, or related medical conditions.
Additionally, the PWFA makes it an unlawful employment practice for employers to:
Require a pregnant employee to accept an accommodation that was not arrived at through an interactive process
Deny employment opportunities to a pregnant employee based on the need to make reasonable accommodations
Require a pregnant employee to take paid or unpaid leave if another reasonable accommodation can be provided
Take adverse action in terms, conditions, or privileges of employment against a pregnant employee on account of the employee requesting or using a reasonable accommodation
Discriminate against any employee for opposing a violation of the PWFA or making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing regarding a violation
How Can Employers Comply with the PWFA?
Employers should already have processes in place for accommodating disabled workers under the ADA. As the PWFA requires employers to provide reasonable accommodations for pregnancy-related conditions that are not sufficiently serious to qualify as disabilities, employers are encouraged to review their pregnancy leave and accommodation policies and make any changes necessary to ensure compliance with the law.
Additionally, employers must ensure that management and HR personnel are trained on the PWFA’s mandates and are prepared to recognize and respond to potential accommodation requests from pregnant workers. Some employers may need to evaluate their facilities to identify and proactively address potential accommodation needs for known pregnancy-related issues.
An experienced business attorney can assist with each of these steps and ensure employers are prepared to comply with the new requirements of the PFWA.