Protecting Pregnant Employees: A Closer Look at PWFA and FMLA

Both the Pregnant Workers Fairness Act (PWFA) and the Family Medical Leave Act (FMLA) play a crucial role in supporting pregnant employees, each offering unique protections. Understanding these differences is key to creating a supportive workplace for all.

Since the landmark passage of the Pregnancy Discrimination Act (PDA) in 1978, federal protections for expecting workers have continued to evolve. Despite these measures, a 2022 survey by the Bipartisan Policy Center revealed that one in five mothers still face pregnancy-related discrimination in the workplace. In response, protections have grown and adapted, with significant contributions from the Family and Medical Leave Act (FMLA) and, more recently, the Pregnant Workers Fairness Act (PWFA), which took effect in June 2023.

How do these two landmark acts compare? How do they ensure pregnant employees receive the accommodations and support they need? Let’s explore the key differences between the PWFA and FMLA and their broader implications for employers and employees.

What is the Pregnant Workers Fairness Act (PWFA)?

The Pregnant Workers Fairness Act (PWFA) significantly advances the fair treatment of expectant mothers in the workplace. This law requires employers to provide reasonable accommodations for employees or job applicants experiencing limitations due to pregnancy, childbirth, or related medical conditions unless these accommodations cause undue hardship for the employer.

The PWFA aims to bridge the gaps left by existing laws like Title VII, the ADA, and the FMLA, ensuring that pregnant workers receive the equal treatment they deserve. It specifically focuses on the need for accommodations, while other laws enforced by the EEOC protect against discrimination and wrongful termination based on pregnancy and related conditions.

In essence, the PWFA is about fostering a supportive work environment that recognizes the unique challenges faced by pregnant workers and helps them thrive both personally and professionally.

What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act (FMLA), enacted in 1993, allows eligible employees to take up to 12 weeks of unpaid, job-protected annual leave for family and medical reasons. This includes childbirth, adoption, caring for a family member with a serious health condition, or the employee’s serious health condition. It applies to public agencies, schools, and companies with 50 or more employees. (See below for qualifications and eligibility criteria).

From Eligibility to Insurance: Decoding PWFA and FMLA

Eligibility Criteria

Employer Coverage

Health Insurance

Leave and Accommodations

PWFA

The PWFA does not require leave, but mandates that employers provide reasonable accommodations for employees unless it would create significant difficulty or expense. Such accommodations may include more frequent breaks, lighter duties, or adjustments to work schedules. According to the EEOC, acceptable accommodations include, but are not limited to:

• Extra breaks for hydration, eating, or restroom use
• Time off for prenatal visits, recovery from childbirth, or medical appointments
• Temporary transfers to less physically demanding positions
• Adjustments to work hours or responsibilities to meet medical needs
• Opportunities for remote work to reduce exposure to potential risks

FMLA

The FMLA allows employees to take up to 12 weeks of unpaid leave with job security. This leave can be used for childbirth, adoption, foster care placements, or caring for a seriously ill family member.

Addressing the Challenges Faced by Pregnant Black and Latinx Workers

Pregnant Black and Latinx workers face significant challenges in low-paid, physically demanding jobs that often require prolonged standing, heavy lifting, and exposure to health hazards. This increases the risk of adverse outcomes like preterm birth and low birth weight. According to the National Women’s Law Center, nearly one in six pregnant workers hold such roles, with Black and Latinx women disproportionately affected.

Protections for these marginalized groups are essential, allowing them to maintain their health and financial security without having to choose between income and a healthy pregnancy. The Pregnant Workers Fairness Act (PWFA) aims to address these disparities by requiring employers to provide reasonable accommodations for all pregnant workers.

Employer Insights on PWFA and FMLA

As companies navigate the requirements of the Pregnant Workers Fairness Act (PWFA) and the Family and Medical Leave Act (FMLA), it’s crucial to understand the practical steps needed for compliance.

Policy Development

Employers should regularly review and update policies to comply with the PWFA and FMLA. This includes outlining reasonable accommodations for pregnancy, defining eligibility criteria, and ensuring clarity. Conducting training sessions for HR and management can help ensure these policies are implemented consistently.

Employee Support

Supporting pregnant employees under the PWFA and FMLA involves creating an inclusive environment where employees feel comfortable requesting accommodations. Best practices include flexible work arrangements, additional breaks, and accommodating medical appointments. Open communication and regular check-ins can address concerns and ensure employees feel supported throughout pregnancy.

Compliance Strategies

Employers should maintain thorough documentation of all accommodation requests and decisions to ensure compliance with both Acts and avoid potential legal issues. It’s also important to stay informed about any changes to the laws and seek legal counsel when necessary. Establishing a clear process for handling accommodation requests and grievances can help prevent misunderstandings and ensure fair treatment.