Starting today, many employers will be required to provide reasonable accommodations to pregnant workers pursuant to the Pregnant Workers Fairness Act (PWFA), which was passed late last year as part of the omnibus spending package. The PWFA significantly changes the obligations of employers with 15 or more employees, which will now be required to accommodate employees’ known limitations related to pregnancy, childbirth, or related medical conditions.

The PWFA is intended to fill a gap in the law caused by what the House Committee on Education and Labor called “varying interpretations” of pregnant employees’ rights under two major federal laws. Workers seeking accommodations due to pregnancy, childbirth, or related medical conditions under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, were required to show that non-pregnant workers who are similarly situated have received similar accommodations to secure relief. Workers seeking protection under the Americans with Disabilities Act (ADA) needed to show that they had certain pregnancy-related conditions, such as gestational diabetes or preeclampsia, in order to secure reasonable accommodations because pregnancy by itself is not a “disability” under the ADA.

Neither of these statutes, then, affirmatively requires that employers reasonably accommodate pregnant workers. Enter the PWFA. Effective June 27, 2023, covered employers will be required to provide reasonable accommodations to the “known limitations” related to pregnancy, childbirth, or related medical conditions of a qualified employee. “Known limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability” under the ADA. “Qualified employee” means an employee or applicant who can perform the essential functions of the job with or without reasonable accommodation. Under the PWFA, a worker may still be a qualified employee if unable to perform an essential function of the job, provided that inability to perform “is for a temporary period” so that performance is possible “in the near future,” making the inability to perform that function something that can be reasonably accommodated.

The PWFA mandates accommodation unless an employer can demonstrate an undue hardship on the operation of its business. This language should sound familiar, as it is consistent with the ADA. The PWFA also requires the same interactive process as the ADA.

Accordingly, the PWFA prohibits employers from:

• Requiring qualified employees to accept an accommodation other than one arrived at through the interactive process
• Denying employment opportunities to a qualified employee if the denial is based on the employer’s need to make reasonable accommodations
• Requiring qualified employees to take leave, whether paid or unpaid, if another reasonable accommodation can be provided that would allow the employee to keep working
• Taking adverse action in terms, conditions, or privileges of employment against a qualified employee who has requested or used a reasonable accommodation

The PWFA also prohibits retaliation against any employee who has opposed, reported, or otherwise participated in an investigation of or proceeding related to a violation of its provisions.

The PWFA does not list or otherwise specify what reasonable accommodations may be required. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the PWFA and is required to issue related regulations within two years. Until then, the EEOC has issued answers to frequently asked questions about the PWFA that can be reviewed here[WSD1] . According to the EEOC, examples of reasonable accommodations include the following:

• Being permitted to sit or drink water while working
• Receiving a closer parking spot
• 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
• Being excused from strenuous activities or activities that involve exposure to compounds not safe for pregnancy

Remedies for violations of the PWFA are consistent with those available under Title VII and the ADA, and can include lost wages, reinstatement, compensatory damages, punitive damages, and attorneys’ fees.

This expansion in protections for pregnant workers follows the enactment of the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act) late last year. The PUMP Act modified the Fair Labor Standards Act to require that employers of all sizes provide a reasonable amount of break time and a space to express milk as frequently as needed by the nursing employee for up to one year following the birth of the employee’s child. The space provided may not be a bathroom and must be shielded from intrusion by both coworkers and the public. Workers must be compensated for any time spent pumping if they are not completely relieved from duty, and they must be compensated for breaks in the same way as other employees.

The PUMP Act is a significant expansion of a 2010 law that required reasonable break time but applied only to non-exempt employees. As of April 28, the PUMP Act also provides additional remedies for violations of these protections, as well as a private right of action.

Employers with fewer than 50 employees are not subject to the PUMP Act’s break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business. Neither the PWFA nor the PUMP Act invalidates or preempts state or local laws that provide equal or greater protection, which at least 30 states and cities already do. Because any requested accommodation under the PWFA could implicate rights under the PUMP Act, state or federal family and medical leave acts, the ADA or similar state laws, or state paid leave laws, this is a good time for employers to review and update their policies regarding accommodations. Employers should also train their supervisors on these new laws, with particular attention to the requirements of the interactive process. The EEOC has also just released an updated “Know Your Rights” poster reflecting the PWFA protections, which can be downloaded here.

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