The essentials of the Pregnant Workers Fairness Act

June 19, 2024

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) was enacted, ushering in a new era of support for pregnant and postpartum women and employees with pregnancy-related medical conditions. On June 18th, 2024, the final set of regulations went into effect. As an employer, you should understand your obligations under the new law to avoid potential legal consequences and ensure a safe and supportive work environment.

For your convenience, we’ve assembled essential information you need to know now about the PWFA.

72% of working women are likely to become pregnant while employed at some point in their lives.¹

What is the Pregnant Workers Fairness Act?

The PWFA goes beyond the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA) to provide protection and support for many pregnancy-related conditions and situations. Essentially, it doesn’t just cover pregnancy but also includes a wide range of conditions associated with pregnancy, childbirth and pregnancy-related medical issues, like infertility. These include not only postpartum conditions but less-discussed aspects like:

Fertility treatments
Gestational diabetes
Postpartum depression
Lactation needs

Almost 25% of female workers considered leaving their jobs due to lack of accommodating support or fear of discrimination during pregnancy.³

Who is defined as a “covered employer”?

The PWFA applies to employers with 15 or more employees, including both private and public sector employers. It also applies to employment agencies, labor organizations, Congress and federal agencies.

Who is defined as a “qualified employee”?

Individuals who have known limitations related to pregnancy, childbirth or related medical conditions are considered qualified if they can perform the essential functions of their job with or without an accommodation. An employee is also qualified if they are only temporarily unable to preform an essential job function due to a pregnancy-related condition, If they can perform their duties in the future, that can be reasonably accommodated in the interim.

8 out of 10 first-time pregnant women work until their final month of pregnancy.²

When did the PWFA go into effect?

The PWFA established initial statutory requirements that went into effect on June 27, 2023. On April 15, 2024, the EEOC issued final regulations and interpretative guidance that went into effect on June 18, 2024.

What is a reasonable accommodation under the PWFA?

Accommodations are defined as modifications or changes in a work environment that allow an employee with a pregnancy-related limitation to remain at work or return to work. To be considered “reasonable,” these modifications or changes shouldn’t create an undue hardship on an employer. Examples may include but are not limited to:

Intermittent leave to attend office visits or during periods of incapacity or telecommuting
Part-time or modified work schedule
Continuous leave of absence to recover from childbirth or other medical conditions related to pregnancy or childbirth
Temporary suspension or elimination of an essential job function
Acquisition or modification of equipment, uniforms or devices
Accommodations related to lactation

What should an employer do when a qualified employee requests an accommodation?

Employers should keep an open and interactive line of communication with employees to help determine the appropriate accommodations and individual needs. The EEOC doesn’t define a specific submission process, so the request can be verbal or written. Employers should establish a process early to gather and maintain accommodation requests, approvals, plans and concluding paperwork.

A best practice for employers is to get familiar with key aspects of PWFA:

Is medical documentation required to provide accommodations?
What does the PWFA prohibit?
What is self-confirmation?
What are temporary suspensions of essential job functions?
What are predictable assessments?

How long can the accommodation for a pregnant worker be in effect?

Like most things when it comes to complying with accommodation regulations, timelines are unique to each situation. This is where undue hardship comes in, and the PWFA is similar to the ADA in that way. Both laws say that an employer must provide reasonable accommodations unless doing so would be too difficult.

However, what makes PWFA unique is that it requires the suspension of necessary work responsibilities, which goes beyond the requirements of the ADA.

Under the final PWFA rule, employers can consider the following factors to determine whether temporarily suspending essential functions as an accommodation would create an undue hardship:

The length the employee will be unable to perform the essential functions
Whether there is work for the employee to accomplish by either performing the remaining functions of their position, temporarily being assigned functions of a different job, reassigning to light/modified duty or other available arrangements
The nature of the essential function, its cost and its frequency
Whether the employer has provided temporary work responsibility suspension for employees in similar positions
If necessary, whether there are other employees, temporary employees or third parties who can perform or be hired to perform the essential function(s)
Whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long
The overall impact the accommodation has on the operation of organization including the impact on company expenses and resources

The law sets a high bar for what constitutes an undue hardship on an employer, considering factors such as cost and the employer's financial resources.

This is not a complete list, for full definitions of undue hardship view the official Pregnancy Workers Fairness Act legislation.

Important:

According to the EEOC, it’s unlawful to mandate that employees take leave when reasonable accommodations can be provided instead. It’s recommended to offer accommodations on an interim basis while awaiting formal approval. In certain cases, medical documentation might not be necessary or obligatory for commonly requested accommodations.

Conclusion

Adhering to the PWFA is pivotal to fostering a supportive work environment. By thoroughly understanding the law, enhancing communication, implementing clear accommodation procedures and offering targeted training for HR and managers, employers can build a workplace that not only complies with legal standards but also genuinely supports and values the wellbeing of every employee.