The Pregnant Workers Fairness Act (the “PWFA”) goes into effect on June 27, 2023.  Signed by President Joe Biden last year as part of the Fiscal Year 2023 Omnibus Spending Bill, the PWFA requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an undue hardship. 

Who is a covered employer under the PWFA?

The PWFA covers employers with at least 15 employees, including both private and public sector employers, Congress, Federal agencies, employment agencies, and labor organizations. 

What is a known limitation?

Under the PWFA, a known limitation is a physical or mental condition relating to or arising from pregnancy, childbirth or related medical conditions that has been communicated to the employer, regardless of whether the condition is a disability.

What is a reasonable accommodation under the PWFA?

Reasonable accommodations are changes to the work environment or the way things are usually done at work.  This may include accommodations such as, for example, allowing the pregnant employee to sit or drink water; receiving closer parking; having flexible hours; receiving appropriately sized uniforms and safety apparel; receiving additional break time to use the bathroom, eat, and rest; taking leave or time off to recover from childbirth; and/or being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. 

What is an undue hardship under the PWFA?

Covered employers are required to provide reasonable accommodations unless they would cause an undue hardship on the employer’s operations.  An undue hardship is a significant difficulty or expense for the employer. 

Are there other requirements under the PWFA?

Covered employers may not:

• Require an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer – an interactive process should be used to determine a reasonable accommodation;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfere with any individual’s rights under the PWFA.

Does this impact current laws?

The PWFA supplements and does not replace other laws, including federal, state, or local laws, that are more protective of employees affected by pregnancy, childbirth, or related medical conditions.   

Conclusion

Employers should provide training to managers to ensure they are prepared to identify requests for reasonable accommodation and engage in the interactive process as needed. Employers with questions on how to comply with the PWFA should contact legal counsel. 

The PWFA requires the Equal Employment Opportunity Commission to promulgate regulations for implementing the PWFA within one year of its enactment.  We will keep you posted on any developments.

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