One of the greatest joys in my life – next to becoming a lawyer, of course – was becoming a mother. However, it was also one of the scariest times in my life. I remember starting a new job while pregnant, unsure of what my role would entail or how the firm would react upon learning the news. Thankfully, I joined a firm that is thoughtful and caring, ahead of its time when it comes to expecting employees. Unfortunately, many other pregnant workers do not find themselves in a similar situation.

Congress first considered the Pregnant Workers Fairness Act (“PWFA”) a decade ago, which aimed to protect employees who work during pregnancy and experience postpartum medical conditions. But the bill stalled in Congress for a decade until it finally passed last year before being signed into law Dec. 29 by President Biden. (Related federal legislation, Providing Urgent Maternal Protections for Nursing Mothers, or “PUMP Act,” also became law in December.)

The PWFA is a civil rights law that ultimately fills the gap in coverage for pregnant workers under the Pregnancy Discrimination Act of 1978 (“PDA”). The PDA prohibits employers covered by Title VII (those with at least 15 employees) from discriminating against employees on the basis of pregnancy. Notably, however, an employer could be in compliance with the PDA and not provide an accommodation to a pregnant worker. For example, under the PDA, pregnant employees previously were entitled only to an accommodation if they could demonstrate that other similarly situated individuals in the workplace were accommodated. Further, the Americans with Disabilities Act (“ADA”), although similar to the PDA in some ways, only provides employees the right to reasonable accommodation if they can demonstrate a pregnancy-related disability.

Enter the PWFA, which takes effect in June. Here’s what you need to know about the new law.

Coverage – The PWFA covers all private employers in the U.S. with 15 or more employees. It also protects employees who work for Congress and federal agencies, as well as part-time, temporary and seasonal workers and job applicants.

Reasonable Accommodations - With the passage of the PWFA, pregnant workers will now have the right to reasonable accommodations, similar to the right provided under the ADA. Specifically, the PWFA requires employers subject to Title VII to provide employees with reasonable accommodations necessitated by pregnancy, childbirth or related medical conditions unless doing so would impose an undue hardship on the employer. Unlike the ADA, however, a pregnant or postpartum worker does not need to have a pregnancy related-disability to receive an accommodation under the PWFA.

Providing a right to reasonable accommodation, the PWFA necessarily contemplates that employers will engage in an interactive process with pregnant workers to discuss if and how their needs can be reasonably met within the employment structure. Examples of reasonable accommodations may include: light-duty assignments; additional or longer break periods; changing the food or water policies to allow an employee to have a water bottle at work; providing an employee with different equipment or devices, such as a stool to sit on; providing a private space (not a bathroom) for lactation needs; allowing for time off for bedrest or recovery from childbirth. The PWFA directs the EEOC to issue guidance within the next year with examples of reasonable accommodations under the Act.

Undue Hardship - Covered employers will be required to provide reasonable accommodations to pregnant employees unless doing so poses an undue hardship on the employer. Important factors to consider in assessing undue hardship include the employer’s size and financial resources compared to the type and/or form of accommodation requested by the employee. Indeed, whether a particular accommodation creates an undue hardship will vary based on these and other factors specific to the employer and the requested accommodation. Accordingly, accommodation requests should be examined on a case-by-case basis.

Employer Takeaways – Employers should start familiarizing themselves with the Act’s requirements and be prepared to have interactive discussions with pregnant employees requesting accommodation. Additionally, under the PWFA, employers are prohibited from retaliating against covered employees who need or request reasonable accommodation. To the extent that further guidance is issued related to the PWFA, we will be sure to update you.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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