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Key Takeaways
- Similar to the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA) requires employers to provide accommodations to employees affected by pregnancy, childbirth, or related medical conditions.
- The PWFA requires employers to provide reasonable accommodations to both employees and job applicants who are pregnant or experiencing pregnancy-related conditions.
- The U.S. Equal Employment Opportunity Commission’s 2024 final rules provide guidance on how employers must implement and comply with the PWFA.
- Under the PWFA, employers must engage in good-faith, timely interactive processes with employees to identify and implement reasonable accommodations.
- Moving forward, employers should update their policies and train human resources professionals, managers, and supervisors to comply with the PWFA and avoid discrimination or retaliation against employees who request accommodations.
The Pregnant Workers Fairness Act (PWFA) shifted workplace ground rules by requiring U.S. employers to offer reasonable accommodations for pregnancy, childbirth, and other related health conditions.
In April 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued final regulations for the PWFA, giving employers of all sizes guidance about complying with this new federal law.
Keep reading to learn more about the PWFA and how it impacts your workplace.
What is the PWFA?
The PWFA, which went into effect on June 27, 2023, is a federal law requiring employers to provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions unless such accommodations would be an undue hardship on the operation of the employer’s business. The PWFA is similar to the Americans with Disabilities Act (ADA) but for pregnant workers.
As the first federal statute protecting on-the-job rights of pregnant workers in 45 years, the U.S. Congress passed the PWFA, helping to fill a significant gap in workplace protections and accommodations. Accommodations may include later start times because of morning sickness, more frequent breaks, or the cessation of specific job duties, such as repeated heavy lifting.
Adding to previous laws like the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA), the PWFA provides clear guidance for employers on accommodating pregnant workers.
PWFA Provisions
The PWFA has several provisions for both employees and employers:
Reasonable Accommodation
Employers must accommodate pregnant workers, including modifying work schedules, offering more frequent breaks, temporarily reassigning these workers to less strenuous or hazardous positions, or providing seating, especially for workers who are required to stand frequently.
Prohibition of Discrimination
Employers cannot discriminate against an employee for requesting or using a reasonable accommodation related to pregnancy, childbirth, or related medical conditions. The PWFA requires employers to accommodate employees’ known limitations related to pregnancy and childbirth.
Interactive Process
Like the ADA, the PWFA requires an interactive process between the employer and worker to determine the accommodation. This process should be collaborative and focused on finding a solution for both parties.
Undue Hardship Exception
While employers must provide reasonable accommodations under the PWFA, they don’t have to if doing so would be an undue hardship on the business. This is defined as significant difficulty or expense relative to the business’s size, resources, and nature. For example, an undue hardship might occur if a retail employee asked to work from home when her job can only be done onsite, impacting the business’s day-to-day operations.
Prohibition of Retaliation
Employers cannot retaliate against employees who request accommodations or assert their PWFA rights. Failing to provide reasonable accommodations for known limitations is an unlawful employment practice.
Final Regulations: What Employers Need to Know
The PWFA’s final regulations, issued in 2024, provide guidance on how the law will be applied and what employers need to do to comply. The final regulations also address accommodations for pregnancy-related conditions so that pregnant or lactating employees are treated fairly. The EEOC provides examples of specific reasonable accommodations to help employers understand their obligations.
Here are some key points to remember:
Pregnancy, Childbirth, or Related Medical Conditions
The PWFA’s final regulations define “pregnancy, childbirth, or related medical conditions” to include any related medical conditions such as gestational diabetes, preeclampsia, postpartum depression, and recovery from childbirth.
Reasonable Accommodation
The final regulations list examples of reasonable accommodations, including but not limited to carrying a water bottle, closer parking, flexible scheduling, telework when possible, and a space to express breast milk.
Interactive Process Requirements
The final regulations emphasize that the employer and worker engage in a timely and good-faith interactive process. Employers should communicate with employees to understand their needs while exploring possible workplace accommodations. It’s critical that the employer document the process to ensure compliance. Additionally, this documentation serves as evidence in case of a dispute.
Undue Hardship Considerations
The EEOC’s final rule outlines the factors to consider when determining if an accommodation would be an undue hardship.
These regulations provide clear examples of factors that may contribute to an undue hardship, including:
- Nature and Cost of the Accommodation: If an accommodation requires significant expenses, such as purchasing costly equipment or making major physical changes to the workplace, it could be considered undue hardship, especially for smaller businesses.
- Business’s Financial Resources: A large company with ample financial resources is generally expected to bear the cost of accommodations more easily than a small business with limited funds. The business’s overall financial health is a critical factor in this assessment.
- Number of Employees: In a small business with fewer employees, reassigning duties to accommodate one worker could overload the remaining staff, potentially leading to an undue hardship.
- Impact on Business Operations: If an accommodation significantly disrupts daily operations or reduces overall productivity, it might be deemed an undue hardship. Our retail worker who requests work-from-home accommodation fits here.
Employers must evaluate these factors carefully and consider alternative accommodations before concluding that a requested accommodation would impose an undue hardship.
Record-Keeping
Employers must keep records of requested and provided accommodations as part of their HR documentation. This includes the initial accommodation request, the details of the interactive process, and any reason for denying a requested accommodation. The records must be kept for at least one year from the date of the decision to provide an accommodation.
Compliance Timelines
Employers should note the compliance deadlines in the final regulations. The PWFA is already in effect as of June 27, 2023, but the EEOC gave employers a grace period until January 1, 2024, to update their internal policies and procedures.
If you have not yet updated your internal policies and procedures, now’s the time. You may want to check in with your employment attorney to see if late adoption may cause your organization any compliance issues.
Training on PWFA
The final regulations require human resources professionals, managers, and supervisors to be trained regularly on the PWFA. At a minimum, training should occur annually. Additional training may be required when legal updates arise.
New hires should receive training during their onboarding process.
This initial and regular training helps ensure that all staff involved in accommodation decisions are fully equipped to comply with the PWFA and effectively support pregnant employees.
Pregnant Worker Fairness Act vs. Pregnancy Discrimination Act
The PWFA and the PDA aim to protect pregnant employees’ rights, but they address these protections differently.
The Pregnancy Discrimination Act, enacted in 1978, is an amendment to Title VII of the Civil Rights Act of 1964. It prohibits discrimination based on pregnancy, childbirth, or related medical conditions and requires employers to treat pregnancy-related conditions the same as any other temporary disability in terms of employment decisions, benefits, and accommodations.
In contrast, the Pregnant Workers Fairness Act goes further by mandating that employers provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions.
While the PDA ensures pregnant workers are not treated unfairly, the PWFA actively requires employers to engage in an interactive process to accommodate the needs of pregnant workers, similar to the requirements under the ADA.
The PWFA thus fills a gap left by the PDA, ensuring that pregnant employees not only avoid discrimination but also receive the support necessary to continue working during their pregnancy.
Together, these two laws provide comprehensive protections for pregnant employees. Understanding the distinction between these laws is essential for employers to fully comply with their legal obligations and effectively support their employees.
What Employers Should Do Next
Employers should act now to comply with the PWFA and its final regulations. Here are some things you should consider:
1
Policy Review
Review your existing policies on pregnancy, disability, and leave to ensure they are PWFA compliant. This may mean updating employee handbooks, changing accommodation request forms, updating onboarding materials, and ensuring all policies are consistent with the final regulations.
2
Training
Begin offering comprehensive training for human resources professionals, managers, and supervisors. The training should cover the PWFA, the interactive process, handling accommodation requests, and preventing retaliation and discrimination.
3
Communication with Employees
Communicate with employees so they know their rights under the PWFA. Employers should provide information on how to request accommodations and what to expect during the interactive process. This can be done through employee handbooks, company intranets, or regular training sessions.
4
Documenting the Interactive Process
Document every step of the interactive process, including the initial request for accommodation, conversations with the employee, and the final decision. This will be helpful in case of an EEOC investigation or an employee lawsuit.
5
Monitoring and Continuous Improvement
Monitor your accommodation process and make changes as needed. This means asking employees who have requested accommodations for feedback and making changes based on their experience. Continuous improvement will keep you compliant with the PWFA while creating an engaging and inclusive workplace for all employees.
Create an Inclusive Workplace through the Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act is a win for pregnant workers. Now, employers must comply with the new law and its final regulations while providing the necessary accommodations to support their employees during pregnancy and related medical conditions. By understanding the PWFA and the final rules, employers can create a more inclusive and fair workplace for all employees.
As the workplace evolves, laws like the PWFA will ensure that all pregnant employees are treated fairly and respectfully. Employers who adhere to these regulations will fulfill their legal responsibilities and foster a more inclusive and supportive workplace.
Frequently Asked Questions
The PWFA requires employers to provide reasonable accommodations for employees affected by pregnancy, childbirth, or related medical conditions. Examples are modifying work schedules, allowing more frequent breaks, providing seating or closer parking, temporarily reassigning to less physically demanding tasks, and allowing telework when possible. The specific accommodation will depend on the employee’s needs and the job.
The interactive process is a conversation between the employer and employee to find a solution. In other words, the employee requests an accommodation for her pregnancy, the employer evaluates the request, and both parties brainstorm possible solutions. This process should be done in good faith and occur promptly. Additionally, the employer must document the entire interactive process, including all steps taken, decisions made, and the reasons behind those decisions.
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Written by
Jennifer Kiesewetter