The Pregnant Workers Fairness Act (“PWFA”) is a new federal law that went into effect on June 27, 2023, requiring covered employers to provide reasonable accommodation to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. While pregnant workers previously received employment-related protections under other federal statutes, including but not limited to the Pregnancy Discrimination Act, the FMLA, and the PUMP Act, the PWFA seeks to fill the gaps between federal, state, and local law with the goal of providing greater protection to pregnant and postpartum employees. Specifically, the PWFA removes hurdles for pregnant or postpartum workers who need reasonable accommodations at work, as the Act does not require proof of a pregnancy-related disability or the need to identify similarly situated employees who have received similar accommodations at work.

What Medical Conditions does the PWFA apply to?

Notwithstanding its name, the PWFA actually does not apply to pregnancy itself. Rather, it applies to “known limitations related to pregnancy, childbirth, or related medical conditions.” Importantly, an employee’s or qualified applicant’s condition is not required to qualify as a “disability” under the Americans with Disability Act (“ADA”).

Who is Afforded Protection under the PWFA?

Employees and applicants who have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” are afforded employment-related protection under the PWFA. However, the employee or applicant must have made the employer aware of their condition(s) in order to receive accommodation under the Act.

Additionally, the employee or applicant must be qualified to perform essential functions of the job, with or without the accommodation. Specifically, the Act requires qualified employees or applicants to show that they have a temporary inability to perform the job without reasonable accommodation and that they will be able to perform the essential functions of the job in the near future.

What is considered a “reasonable accommodation” under the PWFA?

The PWFA conveniently adopts the ADA’s definition of reasonable accommodation. Accordingly, the ADA defines reasonable accommodation as “a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job.”

The EEOC (Equal Employment Opportunity Commission) has not issued a comprehensive list of regulations and examples of reasonable accommodations under the PWFA. However, the House Committee on Education and Labor has provided examples of what reasonable accommodations are contemplated by the Act which include: the ability to sit; the ability to drink water; access to closer parking; flexibility in work hours; appropriately sized uniforms and safety apparel; additional break time allowances for bathroom use, eating, or resting; use of leave to recover from childbirth; excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Am I a “Covered Employer?”

The PWFA applies to “covered employers.” Covered employers include “private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations” unless it can demonstrate that providing employees with accommodation(s) would impose “an undue hardship on the operation of a business.” Again, the PWFA conveniently adopted the ADA’s definition of undue hardship, which is “any activity requiring significant difficulty or expense.”

Additional Prohibitions for Covered Employers

The PWFA applies solely to accommodation and not to claims of discrimination. Importantly, under the Act, covered employers cannot:

• Require an employee to accept an accommodation without a good-faith discussion about the accommodation between the worker and the employer.
• 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).
• Interfere with any individual’s rights under the PWFA.

Given the changing legal landscape, covered employers should review, and if necessary, update employee handbooks and relevant policies to ensure compliance with the PWFA. Covered employers should also ensure that HR professionals and managers are prepared to respond to requests for reasonable accommodation contemplated by the Act.