Pregnant Workers Fairness Act in Effect

The Pregnant Workers Fairness Act (“PWFA”) went into effect on June 27, 2023. President Biden signed the PWFA into law on December 29, 2022, and the Equal Employment Opportunity Commission (“EEOC”) began accepting charges under the PWFA on its effective date.  

The PWFA applies to all private and public sector employers with at least fifteen employees as well as Congress, federal agencies, employment agencies, and labor organizations. It requires that employers provide “reasonable accommodations,” to qualified employees and job applicants, relating to childbirth, pregnancy, or other related medical conditions, unless those accommodations cause the employer “undue hardships.”

The terms “reasonable accommodations” and “undue hardships” under the PWFA are defined by the Americans with Disabilities Act of 1990 (“ADA”).¹  Appropriate reasonable accommodations are to be determined by the interactive process provided for by the ADA, in which employers and employees work together, in good faith, to pursue reasonable accommodations. Employers who, in good faith, pursue reasonable and equally effective accommodations that do not cause an undue hardship are not liable for damages when such accommodations cannot be found.

According to the EEOC, “reasonable accommodations” made for employees covered by the PWFA may include:

• additional, longer, or more flexible breaks to eat, drink, rest, or use the restroom;
• appropriately sized uniforms and safety apparel;
• close parking availability;
• excuses from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy;
• revised work schedules, such as shorter hours or part-time work;
• food and drink policies that allow a worker to have water or food; and
• leave for medical appointments or for recovery from childbirth.

In addition to requiring “reasonable accommodations,” the PWFA also specifically prohibits employers from:

• requiring qualified employees to accept accommodations without a discussion about the accommodations;
• denying employment opportunities to qualified employees or applicants based on the need for reasonable accommodations;
• requiring employees to take leave if reasonable accommodations that would let the employees keep working can be provided; and
• retaliating against individuals who report or oppose unlawful discrimination under the PWFA or participate in a PWFA proceeding.

The PWFA removes pregnant workers and job applicants from the void created by Title VII and the ADA. Employers must be aware that the protections of the PWFA are broader than those of the ADA, which only apply to individuals with disabilities. Managers and supervisors should be trained on how to handle requests from employees and how to work with employees during the interactive process. Lastly, if there is ever any doubt about an employer’s obligations under the PWFA, the ADA, or Title VII, reach out to legal counsel to avoid running the risk of an employee’s filing a charge of discrimination with the EEOC.