The wait is over! The Pregnant Workers Fairness Act (“PWFA”) took effect June 27. Employers who haven’t already done so should familiarize themselves with the law’s requirements and take any steps necessary to ensure they are following the new law, including giving proper consideration to requests for reasonable accommodations raised by pregnant employees.

We are still waiting on exact guidance from the Equal Employment Opportunity Commission (EEOC) as to what could be considered a reasonable accommodation, which the agency should issue by the end of the year. In the interim, employers can look to guidance from similar laws, such as the Americans with Disabilities Act, for examples of reasonable accommodations that might apply, such as water breaks, closer parking, flexible work hours, meal/rest breaks, relief from certain strenuous activity or providing employees with different seating or equipment.

Additionally, employers should take note of, and post, the revised EEOC “Know Your Rights” poster that is PWFA-compliant and explains employee rights under the PWFA. While there is no deadline to replace the old poster, the EEOC has indicated that employers should replace their old posters “within a reasonable amount of time.”

Here's more on the background of the PWFA and its requirements that we previously detailed in February:

Congress first considered the 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.

The PWFA:

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.

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.

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