Pregnant Workers Fairness Act is Now Enforceable: What Employers Need to Know

The PWFA went into effect June 27, 2023, and is now fully enforceable. With two new historic laws on the scene, employers may need to adjust current policies or create new ones to comply with the newly expanded protections for mothers in the workforce.

According to a survey of 600 HR leaders by AbsenceSoft, 43% are either not at all or only somewhat familiar with the PWFA. Despite not being prepared, 72% of those surveyed expect an uptick in pregnancy-related accommodation requests as a result of the new law. Even those employers with more progressive maternity leave policies will enter new terrain as they assess how they can support employees better in the workplace, whether before or after childbirth.¹

The new law gives employees the right to ask for reasonable accommodations like flexible scheduling for doctor appointments, time off to recover from childbirth or miscarriage, and breaks and space for pumping, just to name a few. And importantly, under the new law an employee no longer needs to prove, or even have, a pregnancy-related disability in order to access such accommodations.

Overview: What is the Pregnant Workers Fairness Act?

The PWFA ensures that new and expectant mothers have access to reasonable accommodations in the workplace. Adopting a similar framework to the Americans with Disabilities Act (ADA), the new law helps pregnant, postpartum and lactating workers to continue performing their essential duties, just as workers with disabilities would receive accommodations to do so. It is specifically designed to protect them from potential risk of harm while on the job that may uniquely exist during or after a pregnancy, such as limiting strenuous physical activities, temporarily eliminating exposure to compounds unsafe for a pregnant person, or increasing acccess to water or break periods, as examples.

Furthermore, the law protects employees from retaliation, such as a demotion or firing, just because they request needed extra support before or after the birth of a child.

Rights of Pregnant Workers: Breaking Down the PWFA for Employers

Protections for employees

• All employees have a right to reasonable accommodations for pregnancy, childbirth recovery and related medical conditions, including lactation, mastitis and more.
• Pregnant or postpartum employees do not need to have a pregnancy-related disability to be protected and eligible for accommodations. This is a key change to existing law.
• Unless an employer can prove undue hardship, the PWFA requires employers to engage in an interactive process to meet a worker’s needs. Note that only employers with fewer than 15 employees (total, across all locations) are exempt.
• Employees can file complaints with the U.S. Equal Employment Opportunity Commission (EEOC), which enforces the law.

Who’s covered

• The law protects all government employees and anyone working in the private sector for employers with 15 or more employees.
• All pregnant and postpartum workers are covered, including remote, part-time, temporary and seasonal workers, as well as job applicants.

Employer requirements and compliance

• Employers with 15 or more employeees are required to provide reasonable accommodations unless it would cause “undue hardship.” The employer would need to prove that the accommodation was significantly difficult or costly for the business. The bar is high for employers to make this case.
• Employers cannot determine an accommodation and require the employee to accept it without a discussion.
• Employers cannot require an employee to take paid or unpaid leave if a reasonable accommodation could be provided.
• Employers cannot deny employment opportunities to a qualified employee or applicant based on the worker’s need for accommodation.
• Employers cannot retaliate (take an adverse employment action) against an individual for making a request or filing a complaint under the PWFA.

Interactive or “good faith” process

• The PWFA requires employers to engage in a good faith effort to learn about a worker’s needs and implement the appropriate accommodations.
• Employers are required to respond promptly to any requests.
• A worker is not required to cite the law specifically or use the term “reasonable accommodations” to start the interactive process.

Examples of Reasonable Accommodations

• Modification of existing facilities, such as adding a chair or stool
• Excused from a dress code or provided appropriately sized uniforms or safety apparel
• Additional time for bathroom breaks, rest, or snacks
• Transfer to a less physically demanding position or help with heavy lifting
• Excused from activities that involve exposure to compounds not safe for pregnancy
• Reasonable breaks and private space (not a bathroom) to express breast milk
• Time off to recover from childbirth or miscarriage
• Flexible scheduling to attend doctors appointments, or to alleviate symptoms
• Remote work schedule
• And much more – accommodations vary by individual

How the PWFA Fits in with Other Protections

The PWFA is ten years in the making and received bipartisan support. At the end of 2022, Congress passed both the PWFA and the PUMP Act.

These newest laws join other federal laws that offer various levels of protection for pregnancy, childbirth and related medical conditions like lactation. Those laws include: the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).

The PWFA does not replace any state or local laws that offer more protections, but exists in addition to those laws, and whichever law offers the greatest protection will prevail. According to the EEOC, more than 30 states and cities have laws that provide accommodations for pregnant employees.

Next Steps to Achieve Compliance with the PWFA

Review policies. Take a look at your current policies with your legal team and update accordingly. A proactive approach will head off potential legal ramifications.

Train HR and managers. Educate your teams about the new law so they’ll know how to properly engage in the interactive process after a request for reasonable accommodations.

Consider initiating conversations with pregnant employees. Reach out first to encourage engagement and a healthy return to work.

Explore accommodation options. Especially for your more essential function positions, review in advance how those roles could be restructured, if need be, to accommodate pregnant or postpartum workers.

Need Help Understanding the PWFA and PUMP Act?

Learn more about the PWFA directly from the EEOC, who is tasked with enforcing the law.

Here’s an explainer on rights for employees from the non-profit A Better Balance.

To support your pumping workers, check out our PUMP Act resources and download our newly updated Lactation Accommodation template.

Other questions? We’re here to help – our Kin experts help all types of employers meet the needs of new parents.

¹Cuadra, D., The PWFA is Expanding Protections for Pregnant Workers, Employer Benefit News, June 5, 2023.