Understanding the Pregnant Workers Fairness Act

By Maureen James - Skoler Abbott P.C.

May 30, 2024

The federal Pregnant Workers Fairness Act (PWFA) became law in June 2023.  The Act requires a covered employer to provide reasonable accommodation(s) to a qualified employee or applicant who has known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship.  The focus of the PWFA is specifically on accommodations, leaving other existing laws related to discrimination on the basis of pregnancy, childbirth, or related medical conditions unchanged.

Over the past year the U.S. Equal Employment Opportunity Commission (EEOC) has been creating regulations for the implementation of the PWFA.  Those regulations were recently issued and take effect on June 18, 2024.  In anticipation, here are some key areas of the law and regulations employers should be aware of.

WHO is covered by the PWFA?

The PWFA applies to private and public sector employers with fifteen (15) or more employees, employment agencies, and labor organizations.

Although many employers are familiar with the requirement to provide reasonable accommodations to qualified disabled persons under the Americans with Disabilities Act, the PWFA has an expanded definition of who is considered qualified.  Like the Americans with Disabilities Act, an employee can be qualified under the PWFA if they can perform the “essential functions” of their job with or without a reasonable accommodation for limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.  The limitations must be communicated by the employee, or their representative, to the employer, but notice to a supervisor is sufficient.  Common examples of limitations an employee may have include morning sickness, avoidance of hazards specific to the unborn (i.e. – chemicals), and physical restrictions such as lifting or standing.

Unlike the Americans with Disabilities Act, under the PWFA, if an employee cannot perform the “essential functions” of their job with or without a reasonable accommodation, they may still be qualified under the PWFA if their inability to perform is “temporary,” and they can perform the essential functions “in the near future,” and the inability to perform can be reasonably accommodated.  “Near future” is generally “within 40 weeks.”  This is a stark and significant difference that employees need to be aware of.

The PWFA regulations also make clear that medical conditions related to pregnancy includes deciding whether to obtain an abortion, having an abortion, fertility treatments, in vitro fertilization, pre-birth and post-birth complications, lactation, and more.

WHAT does the PWFA require?

Covered employers cannot:

•    Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
•    Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
•    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;
•    Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
•    Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.

WHERE does a covered employer start when evaluating reasonable accommodations?

A covered employee must inform their employer of a limitation due to pregnancy, childbirth, or related medical conditions.  This notice does not have to be in writing and may not require supporting documentation.  Once aware of the limitation, the employer should engage in the interactive process to determine what the limitation is, how it relates to the essential functions of the employee’s position, and what accommodations may be undertaken.  The regulations provide examples that may be reasonable accommodations under the PWFA:

•    Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
•    Changing food or drink policies to allow for a water bottle or food;
•    Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
•    Changing a uniform or dress code or providing safety equipment that fits;
•    Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
•    Telework;
•    Temporary reassignment;
•    Temporary suspension of one or more essential functions of a job;
•    Leave for health care appointments;
•    Light duty or help with lifting or other manual labor; or
•    Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

This list is not an exhaustive or rigid guide.  Each covered employer, qualified individual, and situation is unique and over the course of an employee’s pregnancy, childbirth, or in situations involving related medication conditions, the evaluation of an accommodation will change.

As the accommodation is considered, the covered employer must determine whether it will cause an “undue hardship,” in other words, significant difficulty or expense.  Consistent with other applications of the “undue hardship” standard, the EEOC clearly considers this a high bar for employers given the likely temporary nature of the limitations on the employees under the PWFA.

WHEN do employers need to be complying with the PWFA?

The law was enacted back in June 2023 and since that time covered employers have been obligated to comply with its requirements.  The regulations that the EEOC worked on over the course of its first year were meant to provide employers with additional information to facilitate compliance.  The EEOC has been accepting charges alleging violations of the PWFA since June 2023 and a lack of specific regulations will not be a viable defense to any employer who has been accused of violations during the past year.

WHY do we need this law when there are existing protections pursuant to other laws?

The PWFA is a federal law and does not preempt other federal or state laws which provide more protections to applicants and/or employees affected by pregnancy, childbirth, or related medication conditions.  Title VII prohibits discrimination based on those same conditions and many states offer parallel protections.  Massachusetts, G.L. ch. 151B prohibits the unlawful discrimination based on “pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child”.  The Americans with Disabilities Act protects workers from discrimination based on a disability, and requires reasonable accommodations to a qualified worker, however pregnancy is not considered a per se disability under that statute.  The goal of the PWFA is, to the extent gaps in existing law exist, to create protections for accommodations for workers affected by pregnancy, childbirth, or related medication conditions even if those same conditions do not rise to the level of a disability.

As the regulations for the PWFA are implemented in mid-June, employers should evaluate their own internal policies and procedures to ensure compliance.  Consult with legal counsel to discuss any questions regarding limitations and/or accommodations under the PWFA.

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