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) ADA and 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 August 11, 2023 the Notice of Proposed Rule Making for the Pregnant Workers Fairness Act was formally published by the Federal Register for public review and comment, which will last 60 days. We have added the notable regulations to our reference guide below.
AbsenceSoft’s in-house compliance team continues to track update 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 (think future employees) 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 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 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.
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 a reasonable accommodation. While the earlier act, the PDA (Pregnancy Discrimination Act), 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 pregnant and postpartum employees. Additional considerations for an employer’s ‘undue hardship’ test including accommodations the PWFA will always consider ‘reasonable.’ 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 PWFA, pregnant and postpartum employees who were not covered under 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:
- 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
- The PWFA covers temporary conditions, including a typical pregnancy
- The PWFA does not require an employee to take paid or unpaid leave if another reasonable accommodation is available.
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 treating physicians will still be required to engage in the interactive process to find a reasonable accommodation for the employee.
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 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.
According to AbsenceSoft’s 2023 Pregnant Workers Fairness Act Survey, half of the respondents reported that annually, 11-40% of their employees are on maternity leave. Furthermore, 26% stated that over 21% of their workforce goes on maternity leave annually. As the definition of family continues to expand, employers should be prepared to engage in the interactive process and engage with pregnant workers as the % of employees needing these benefits will continue to rise.
How can your HR team ensure they are compliant with PWFA?
With PWFA already in effect, it’s crucial to make sure your process is in compliance with the PWFA standards and employees are aware of how to access these benefits should they need them.
Take the time to examine your policies
To ensure that you’re 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. Particularly ensure that any benefits you’re providing to other temporary disabled employees (such as those on short-term disability) are in parity for those 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.
Get your team members up to speed
It’s also important to make sure that your team members and people managers are up to speed on the changes brought about by the PWFA. Provide comprehensive training to HR and management personnel involved in receiving accommodation requests. This will equip them 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 for all employees. Accommodation management software like AbsenceSoft can help to improve your interactive process stay equitable and repeatable. By keeping communications in one place, the AbsenceSoft system can serve as your source of truth for all accommodation requests and employee interactions. A centralized, standardized, automated process can help to ensure that all ADA outcomes are as fair and consistent as possible and easily reportable.
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, 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.
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.
How will the PWFA be enforced?
The EEOC (Equal Employment Opportunities Commission) has 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 PWFA.