Q: What is the Pregnant Workers Fairness Act and what should employers know about it? 

A: Effective June 27, 2023, qualified employees can file charges of discrimination with the Equal Employment Opportunity Commission (EEOC) for alleged violations of the Pregnant Workers Fairness Act (PWFA), a new federal law that requires covered employers to provide “reasonable accommodations” to meet a worker’s 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. 

Previously, pregnant workers were only protected by the Pregnancy Discrimination Act of 1978 (PDA) and the Americans with Disabilities Act of 1990 (ADA). However, neither the PDA nor the ADA explicitly require covered employers to provide reasonable accommodations to pregnant workers. As a refresher, the PDA prohibits sex discrimination on the basis of pregnancy, making it unlawful to hire, fire or otherwise take any adverse action based on pregnancy, childbirth or related medical conditions, and the ADA prohibits discrimination on the basis of disability. While the ADA requires employers to provide reasonable accommodations to disabled employees, pregnancy is not a disability. Of course, some exceptions to both the PDA and ADA may apply – such as some pregnancy-related conditions qualifying as per se disabilities – such exceptions do not offer the same protection to pregnant workers that the PWFA does. 

The House Committee on Education and Labor provides the following specific reasonable accommodation examples within its Report on the PWFA, reasoning that: 

“Seventy-five percent of working women will become pregnant while employed at some time in their lives. Women are increasingly either the primary or co-breadwinners of households. As a result, more pregnant women work later into their pregnancies. Research suggests that more than 80 percent of first-time mothers work until their final month of pregnancy. Pregnant workers may need reasonable accommodations to protect the health of both mother and baby. Reasonable accommodations can include providing seating, water and light duty. They do not need to be, nor are they typically, complicated or costly. But when pregnant workers do not have access to the reasonable workplace accommodations they need, they are forced to choose between their financial security and a healthy pregnancy.” 

These accommodations include:

• The ability to sit or drink water

• Availability of closer parking

• Flexible hours

• Appropriately sized uniforms and safety apparel

• Additional break time to use the bathroom, eat and rest

• Leave or time off to recover after childbirth

• To be excused from strenuous activities and/or activities that involve exposure to compounds not safe during pregnancy. 

As under the ADA, requested accommodations must be provided unless they will cause the employer an “undue hardship” (significant difficulty and/or expense for the employer), and employers must engage in the “interactive process” in coming to an agreement on requested accommodations with their qualified employees. Simply put, the interactive process calls for employers and employees with disabilities who request accommodations to work together to arrive at reasonable accommodations that work for both parties. 

However, in some cases under the PWFA, the worker may request an accommodation that will easily address a known limitation of pregnancy, rendering the “interactive process” unnecessary. For example, a pregnant worker in the last trimester of pregnancy who usually stands to do the job may request a stool. In this case, the worker's pregnancy is likely known to the employer or readily apparent, and the solution is inexpensive, easily available and likely minimally disruptive to the employer’s operation. 

While it may seem obvious, it is worth reiterating that the PWFA only applies to accommodations and does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. Importantly, a new poster released by the EEOC updates and replaces the “EEO Is the Law” poster to identify the PWFA. The PWFA requires employers to post a notice describing the various protections under the new law. The required notice is included in the “Know Your Rights” poster update. 

Under the PWFA, a covered employer may not: 

• Refuse to provide reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

• Require a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.

• Deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee.

• Require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee.

• Take adverse action in terms, conditions or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth or related medical conditions of the employee. 

As a result of this recently enacted law, employers must review their employee handbooks and policies to ensure compliance with the PWFA.