The Pregnant Workers Fairness Act is a new US federal law that makes reasonable accommodations more accessible to pregnant and postpartum workers. This important law changes the landscape for supporting pregnant workers in the workplace.
The PWFA took effect on June 27th, 2023. The act requires that any public or private sector employers with 15 or more employees provide reasonable workplace accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions.
The PWFA is intended to fill the gaps between Title VII (as amended by PDA), the ADA and the FMLA. It assists in assuring that pregnant people are treated equally in the workplace when they may need accommodations due to their pregnancy or related condition.
On April 19, 2024, the U.S. Equal Employment Opportunity Commission published its final rule to implement the law in the Federal Register. Employers will be required to comply with the final rule by June 18, 2024. We have added the notable regulations to our reference guide below.
AbsenceSoft’s in-house compliance team continues to track updates and guidance relating to the PWFA to ensure AbsenceSoft’s products are prepared for any new developments.
Who is eligible for protection under PWFA?
Any employee or applicant who works for a covered employer is protected under PWFA. Covered employers include private and public sector employers with at least 15 employees, congress, federal agencies, employment agencies, and labor organizations.
In addition, and unlike the Family and Medical Leave Act (FMLA) (Family and Medical Leave Act), there is no waiting period for eligibility or hours worked requirement. The Pregnant Workers Fairness Act (PWFA) protects both employees and potential employees of covered employers who have known limitations related to pregnancy, childbirth, or related medical conditions during all stages of employment.
The new regulations expanded the definition of “qualified” individual, which may allow an employee to meet the definition regardless of their “temporary” inability to perform an essential job function. These regulations clarify the definition of “temporary” to be an estimate of 40 weeks (please note each employees needs may differ).
EEOC’s final rule made some important clarifications regarding the type of limitations and medical conditions the PWFA requires employers to accommodate. As the legal community has observed, the agency took a broad view of these definitions. Employees can seek reasonable accommodations for limitations and pregnancy, childbirth, or related medical conditions that include, without limitation, the following examples:
- Current, past, and potential pregnancy
- Lactation (including breastfeeding and pumping)
- Use of contraception
- Menstruation
- Infertility and fertility treatments, endometriosis
- Miscarriage, stillbirth, or having or choosing not to have an abortion
- Existing conditions exacerbated by pregnancy
What new protections does the PWFA grant employees?
The PWFA prohibits employers from discriminating or retaliating against employees and job applicants based on their need for reasonable accommodation. While the earlier act, the Pregnancy Discrimination Act (PDA), does protect pregnant employees from discrimination, it did not impose accommodation requirements that can assist them in performing their job duties.
Ultimately, the PWFA places more responsibility on employers to provide reasonable accommodations to employees with pregnancy-related conditions.
The rule provided several examples of reasonable accommodations under the PWFA, which included breaks, access to water, seating, parking adjustments, light duty, time off for appointments, temporary reassignment, telework, and more.
EEOC guidance also specifically noted some accommodations that should not impose an undue hardship, and should be granted in virtually all situations. These “predictable assessments” include:
- Allowing an employee to carry or keep water and drink in or nearby the employee’s work area
- Allowing an employee to take additional restroom breaks
- Allowing an employee whose work requires standing to sit, and vice versa
- Allowing an employee to take breaks to eat and drink.
Employers should work with employees and providers to determine which accommodation can be implemented, unless it causes an undue hardship.
According to EEOC’s final rule, employers have to meet the same standard as the ADA to prove an accommodation imposes an undue hardship. This ensures that pregnant employees receive the same level of protection and support as other employees who have temporary medical conditions.
What makes the PWFA different from the ADA?
It is important to note that pregnancy itself does not meet the definition of a “disability” under the ADA, because it usually is a short-term condition. Only some pregnancy-related conditions will meet the definition of a disability. Under the PWFA, pregnant and postpartum employees who were not covered under the ADA or Title VII can now ask their employers to provide them with workplace accommodations under the PWFA.
Conditions may begin prior to conception (including preparation for pregnancy and childbirth) and could continue into postpartum recovery (such as postpartum depression or anxiety).
Other similarities and differences include:
Similarities
- The employer must engage in the interactive process with the employee.
- Employees are also responsible for engaging in the interactive process.
- Covered employers must provide reasonable accommodations.
- The accommodation cannot cause the employer undue hardship.
Distinctions
- The PWFA covers temporary, minor, and episodic physical and mental conditions.
- There is no requirement that conditions rise to a specific severity threshold.
- The PWFA does not require an employee to take paid or unpaid leave if another accommodation is available.
- The EEOC expects the interactive process to be speedy, due to the temporary nature of pregnancy and related conditions.
- Employees or applicants can be qualified for a role even if they cannot perform one or more essential functions of the job, but could in the near future or with accommodation.
Key difference: The PWFA deems an individual impaired by pregnancy, childbirth, or related medical conditions qualified and entitled to reasonable accommodation without the scrutiny the ADA typically places on an employee’s ability to perform job functions.
What does this all mean for employers?
If the requested workplace accommodation for a pregnant worker does not impose an undue hardship on the organization, employers now are legally required to provide them under the PWFA. Employers, employees, and, in limited circumstances, treating physicians will still be required to engage in the interactive process to find a reasonable accommodation for the employee.
In its final ruling, EEOC emphasized that the interactive process for PWFA accommodations should be quick. The agency noted that “most requests for accommodations…can be provided quickly and typically will consist of nothing more than brief conversations or email exchanges.”
Below are some examples of a request for an accommodation:
- “I’m having trouble getting to work at my scheduled starting time because of morning sickness.”
- “I need more bathroom breaks because of my pregnancy.”
- “I need time off from work to attend a medical appointment because of my pregnancy.”
In addition, employers cannot require qualified employees “to take paid or unpaid leave if another reasonable accommodation can be provided.” For example, if an employee requires a part-time schedule change or shift change, an employer will be required to consider this during the interactive process. In effect, employers may only require an employee to take leave as a last resort if there are no other reasonable accommodations that can be provided.
This means that employers need to go through the interactive process, and quickly, with each pregnant employee to find them a reasonable accommodation. No one-size-fits-all pregnancy accommodation or leave policies will be sufficient to meet these needs as limitations will differ per employee. To learn more about interactive process best practices, check out our blog: How to Improve Your Interactive Process with Technology.
Employers will to be careful about asking for documentation. According to the EEOC, documentation is not generally required when:
- The limitation and need for a reasonable accommodation is obvious
- When the employer already has sufficient information to support a known limitation related to pregnancy
- When the request is for one of four identified reasonable accommodations (additional restroom breaks, food and drink breaks, having beverages readily available, and sitting or standing as needed)
- When the request is for a lactation accommodation
How can your HR team ensure they are compliant with PWFA?
With PWFA already in effect, it’s crucial to ensure your process complies with PWFA standards. Employees should easily know how to access these benefits should they need them, so periodic awareness training can help close any knowledge gaps.
Take the time to examine your policies
To ensure that you are compliant, take some time to examine your company’s policies. If you’re an employer with over 15 employees, it is essential that your policies align with the new PWFA regulations.
Pay particular attention to any benefits you are already providing to other temporary disabled employees (such as those on short-term disability) to make sure they have parity for employees who are experiencing limitation due to pregnancy, childbirth, or related conditions.
Carefully review your policies with your legal counsel or HR consultant and make any necessary updates to ensure that they are up-to-date and in compliance with the new regulations.
Train HR team members, employees, and frontline managers
It’s important to ensure that HR team members and people managers are up to speed on the changes brought about by the PWFA. Provide comprehensive training to anyone who might be receiving accommodation requests under the PWFA.
EEOC noted in its final rule that employees should be able to establish an accommodation with the person they normally come to with work-related matters, making manager training key. Training will equip leaders with the information they need to guide employees to the appropriate resources and ensure you’re avoiding any mistreatment of those who are protected by the PWFA.
Have an effective interactive process in place for all employees needing accommodations
As the number of accommodation requests is expected to increase now that the PWFA is in effect, it’s essential to have an effective interactive process in place that is consistent and quick. Accommodation management software like AbsenceSoft can help to streamline your interactive process, and make sure it is equitable and repeatable.
By keeping communications in one place, a centralized system can serve as your source of truth for all accommodation requests and employee interactions. Having a standardized, automated process helps to make sure all ADA and PWFA outcomes are as fair and consistent as possible and easily reportable. If you would like to learn more about how AbsenceSoft can help you stay compliant with the PWFA, our ADA experts would be happy to help.
Frequently Asked Questions
Can PWFA run congruently with FMLA?
Yes, FMLA and the PWFA can work together and be used in tandem. FMLA specifically provides leave for employees affected by pregnancy or childbirth; whereas PWFA will cover short-term accommodation for pregnant workers. Also note that an employee who is ineligible for FMLA may now be covered for leave as an accommodation under the PWFA if requested.
Does PWFA cover birth and postpartum recovery as well?
Yes, the PWFA can be used during pregnancy, as well as during and after birth. It may even be used in the preparation for pregnancy if a worker is temporarily impaired due to a related condition, such as menstruation, birth control use, infertility and fertility treatments, and endometriosis.
How long is an employee’s job protected under PWFA?
The PWFA does not specify length of coverage or an entitlement amount. The PWFA covers employees with known limitations related to pregnancy, childbirth, or related medical conditions with no specified end-date as this will differ per employee. The interactive process will determine what type of accommodation and for how long the employee will need it.
Is there a maximum length of time an accommodation can last under the PWFA?
There is no defined maximum time for accommodations required or provided under the PWFA. See above.
What are some examples of accommodations under the PWFA?
Examples (not limited to) of accommodations include: breaks and schedule changes, parking accessibility, uniform modification, schedule or work location change, and others. Accommodations may also include light duty, temporary reassignment, temporary suspension of job duties, remote work, and time off. You can read more about potential accommodations for employees with pregnancy-related conditions.
How will the PWFA be enforced?
The EEOC (Equal Employment Opportunities Commission) started accepting charges under the PWFA on June 27, 2023. For the PWFA to apply, the violation listed in the complaint must have occurred on June 27, 2023, or later. Employers should be aware however that employees can still bring complaints under the standard ADA and PDA if those apply.
Watch our Live with Legal webinar replay for a legal deep dive of the PWFA.
Watch our PWFA webinar to learn how to get your HR team up-to-date with the PWFA.
