Pregnant Workers Fairness Act: Employer guide

On December 22, 2022, President Joe Biden signed the Pregnant Workers Fairness Act (PWFA), a law that gives reasonable accommodation to pregnant and postpartum workers. 

For many, especially those working in low-wage and physically demanding positions, it’s long overdue. Much like the Americans with Disabilities Act (ADA), this act provides job security for workers and provides them with protection while participating in certain activities.

In this article, we’ll look at some of the specifics as to who the PWFA applies to when it goes into effect, and what the PWFA covers explicitly. Then, we’ll share more info about employee rights under this act, information about existing federal employment laws affecting pregnant workers, and tips for HR and employers. 

What is The Pregnant Workers Fairness Act?

According to the Congress.gov website, The Pregnant Workers Fairness Act “ prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by a pregnancy, childbirth, or related medical conditions.”

The Pregnant Workers Fairness Act officially goes into effect on June 27, 2023, and applies to pregnant workers in the United States and those who have recently given birth. Under this law, workers are guaranteed the right to “reasonable work accommodations” during the term of their pregnancy and postpartum.

Once this law takes effect, employers with more than 15 employees will be required to provide the necessary accommodations for existing and potential employees. The only exception to this is when the working limitations and accommodations present an “undue hardship” for employers.

What PWFA covers

Who does the Pregnant Workers Fairness Act apply to?

The Pregnant Workers Fairness Act protects individuals who work for the government or those who work for private companies with more than 15 employees. Protection extends to full-time, part-time, temporary, and seasonal employees.

Under the PWFA, workers must receive accommodation for known limitations related to their condition. In order to qualify for protection, employees should comply with the following:

• They are unable to complete their jobs’ functions for a temporary period of time.
• They will be able to perform these functions in the near future
• The employer can provide reasonable accommodation for these tasks

What are the specific requirements for employers under PWFA?

The Pregnant Workers Fairness requires employers to:

• Make accommodations for pregnant or postpartum employees with known limitations. Unless these limitations “impose an undue hardship” on the employer. For example, if a worker requires a less physically demanding and lighter role, and the employer lacks the economic means to make this possible.
• Agree with employees about accommodations through an “interactive process”. This means that employers should communicate with employees about their needs and come to an agreement. This can be done through email, phone, or in person.
• Provide fair employment opportunities for pregnant and postpartum individuals. Employers cannot deny certain opportunities to individuals under the premise that they are pregnant or have recently given birth.
• Not require employees to take leave or accept alternative accommodations unless there are no other reasonable accommodations. For example, employers cannot request that an employee works reduced hours or takes a lighter workload if it is not what they agreed to.
• Provide the same employment practices, privileges, and conditions for employees who request accommodations. Employers may not take any sort of adverse action or discriminate against employees because of their requests.

What does “Reasonable Accommodations” mean in the PWFA?

According to the US Department of Labor (DOL), a “reasonable accommodation” is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.

Here are a few examples of what a reasonable accommodation might look like for pregnant workers:

• Assistance for physically demanding tasks, such as moving heavy objects.
• Temporary change in working spaces or assignments
• Allowing pregnant workers to telecommute
• Additional break time for workers to rest, eat or use the bathroom
• Adjustments to working hours to accommodate physical conditions
• Allowing pregnant workers to sit or use different chairs than those normally provided
• Making adjustments to uniforms and dress requirements for pregnant workers.

Employee rights under The Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act is a major step in combating pregnancy discrimination in the workplace. Previously, pregnant women were only provided with the same level of protection through the Americans with Disabilities Act (ADA). However, ADA legal protection only extended to workers who were dealing with pregnancy-related disabilities.

Under the preexisting legal framework, many women were forced to decide between their physical safety and their job. This act provides millions of people the right to keep their position, temporarily remove themselves from harm, and not face negative consequences and discrimination as a result.

Existing federal law for pregnant workers

Title VII of the Civil Rights Act of 1964

The US Equal Employment Opportunity Commission (EEOC) currently enforces two sets of federal laws that provide certain protections for pregnant employees and job applicants. One is the Americans with Disabilities Act, and the other is Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

This law prohibits employers from practicing discrimination based on race, color, religion, sex, and national origin. Under this law, pregnancy discrimination is considered to be a form of sex discrimination. Specifically, Title VII protects workers from facing workplace discrimination based on the following:

• Current pregnancy
• Past pregnancy
• Potential pregnancy
• Medical conditions that stem from pregnancy (such as breastfeeding and lactation)
• Having an abortion or choosing to have an abortion
• Birth control

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) protects workers with pregnancy-related disabilities, such as diabetes due to pregnancy. While pregnancy itself is not a disability under the ADA, the law requires employers to provide workers with reasonable accommodations for certain impairments that they face due to pregnancy.

Family and Medical Leave Act (FMLA)

Under the Family and Medical Leave Act, workers can take up to twelve weeks of unpaid maternity leave during pregnancy or after giving birth. According to the US Department of Labor, workers can use their 12 weeks of FMLA leave for the following purposes:

• Giving birth
• Prenatal care
• Incapacity related to pregnancy
• For serious health conditions following pregnancy

Additionally, the worker’s spouse qualifies for up to 12 weeks of unpaid parental leave for the birth of their child and to care for their spouse during pregnancy or after giving birth.

Break Time for Nursing Mothers Act

According to the Break Time for Nursing Mothers Act under the Fair Labor Standards Act (FLSA), employers must provide adequate conditions for nursing working mothers. For the first year after giving birth, workers are entitled to:

• Longer break times to express breast milk
• The right to express breast milk when they feel its necessary
• A designated place for lactation. This cannot be the bathroom and workers must be provided with privacy from their coworkers and the public.

Note that FSLA does not require employers to provide compensation for additional break time. However, certain state breastfeeding laws might say otherwise.

PUMP for Nursing Mothers Act

On December 29th, 2022, President Biden signed into effect The Providing Urgent Maternal Protections (PUMP) Act, which clarifies and adds to the Break Time for Nursing Mothers Act. 

• Provides break time for an additional 9 million women who would otherwise be excluded due to conflicting overtime laws.
• Provides workers with legal grounds to file lawsuits immediately if their employer refuses to comply with nursing laws.
• Clarifies that workers should receive payment during break times unless they are completely relieved from all working duties.

Under the PUMP act, employers with more than 50 employees must give employees break time and an adequate location for pumping breast milk for their child one year after giving birth. However, businesses that are smaller than 50 employees and can show that designating a room for lactation would present an “undue hardship” might be exempt from this law.

Tips for HR and employers

For HR, staying on top of changing federal laws can be tough. Here are some tips to help you stay compliant and provide the best workplace environment for pregnant and postpartuum employees:

• Provide employees with accurate information about rights during and after pregnancy. Make it clear that your company will make modifications to their role and accommodate them as best as possible.
• Look out for changes to key metrics and signs of discrimination in your DEI Dashboard. This might include a drop in engagement and job satisfaction for affected employees. Make employees aware of your company’s zero-tolerance policy and take disciplinary actions in case of infringement.
• In addition to Federal Laws, there are state and local laws regarding pregnancy, nursing, and leave that you might be subject to. Be sure to keep up to date with an HR compliance calendar to make sure that you don’t miss anything.
• Aim to support your team and go beyond what the federal and state laws dictate. Pregnancy has long been a leading cause of gender inequality in the workplace, and no current federal laws provide employees with paid time off for childbirth. Consider provisions for this and flexible working options for new parents. Your team will be appreciative and more likely to stand committed to your company’s values.