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Pregnant Workers Fairness Act: Guide for Employers

The Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023, introduced new requirements for employee workplace accommodations related to pregnancy, childbirth, and associated medical conditions. The PWFA is a federal law that applies to private employers with 15 or more employees, public sector employers; and employers within federal agencies, employment agencies, labor organizations, and Congress. Because the PWFA is now being enforced, employers should review their current accommodation policies, train management on PWFA requirements, and establish clear procedures for handling accommodation requests.

Key Provisions of the PWFA

The Pregnant Workers Fairness Act (PWFA) establishes clear requirements for employers to support employees experiencing limitations related to pregnancy, childbirth, or associated medical conditions. Complying with the PWFA’s requirements protects employers from legal risks and encourages a workplace environment that supports employees during significant life events. The most notable provisions of the PWFA are:

Reasonable Accommodations: Employers must provide reasonable accommodations for employees and job applicants with known limitations stemming from pregnancy, childbirth, or associated medical conditions, provided that accommodations do not impose an undue hardship on the employer.
Prohibited Practices: The PWFA explicitly forbids certain actions that could undermine the rights of employees seeking accommodations. Some prohibited actions include:
- Denying employment opportunities based on the employee’s need for reasonable accommodation
- Forcing employees to accept accommodations they did not request
- Requiring employees to take leave if reasonable accommodations can be made to allow them to work
- Retaliating against employees or job applicants who request or use accommodations under the PWFA

Definition of Key Terms

The Pregnant Workers Fairness Act (PWFA) introduces specific terms that help clarify the responsibilities of employers and the rights of employees under the law. Some important terms used in the PWFA are as follows:

Covered Employer: Private employers with 15 or more employees, public sector employers (state and local governments), federal agencies, employment agencies, labor organizations, Congress.
Qualified Employee: Any employee or job application who (1) is capable of performing the primary functions of their job with or without reasonable accommodations, or (2) is temporarily unable to perform their job duties because of pregnancy, childbirth, or related medical conditions, but can do so in the near future with accommodations.
Primary Job Functions: The fundamental duties of a position that an employee is required to perform, excluding marginal or incidental tasks.
Known Limitation: A physical or mental condition related to pregnancy, childbirth, or associated medical conditions that the employee has communicated to their employer.
Reasonable Accommodation: Changes to the work environment or job requirements that enable an employee to perform their duties.
Undue Hardship: A situation where providing an accommodation would result in significant difficulty or expense for the employer.

Reasonable Accommodations Under the PWFA

Under the Pregnant Workers Fairness Act (PWFA), a reasonable accommodation is an adjustment to the work environment or job duties that enables the employee to continue working without imposing an undue hardship on the employer. Some examples of reasonable accommodations are

Flexible Work Schedules: Allowing modified start and end times or providing additional breaks to accommodate medical needs.
Modified Job Duties: Adjusting physical tasks or temporarily assigning less strenuous responsibilities.
Access to Seating: Providing chairs or stools for roles that typically require standing for long periods.
Time Off: Granting leave for prenatal appointments, childbirth recovery, or pregnancyrelated health conditions.
Temporary Reassignment: Moving the employee to a less physically demanding role while maintaining pay and benefits.

Undue Hardship Under the PWFA

The Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations unless doing so would create an undue hardship. This exception applies when an accommodation would impose significant difficulty or expense, based on factors like the employer's size, resources, and operational needs. Here are some examples that may be considered undue hardship:

Financial Impact/Excessive Cost: Providing an accommodation that requires substantial financial outlay beyond the employer's resources, such as hiring additional staff or purchasing expensive equipment, could qualify as an undue hardship for smaller businesses.
Operational Disruption: If accommodating an employee’s limitations involves redistributing essential job functions in a way that disrupts critical operations or adversely affects productivity, the request may impose an undue burden.
Significant Shift Modifications: Requests that require the employer to entirely restructure shifts or workloads and place a disproportionate burden on other employees, may not be feasible.
Safety Concerns: If an accommodation introduces significant safety risks for the employee or their coworkers, such as assigning tasks that cannot be modified to eliminate hazards, it may be considered unreasonable.
Resource Constraints: Small businesses or organizations with limited budgets may find it unworkable to acquire highly specialized equipment or make physical modifications that go beyond their capacity.
Business Size and Resources: Smaller organizations with fewer employees or limited financial resources may face challenges accommodating certain requests, such as creating new positions or maintaining extended absences for a single employee.

Employers evaluating accommodation requests need to document their analysis carefully, considering the costs, operational impacts, and any alternatives explored. When denying a reasonable accommodation based on undue hardship, employers should document the specific factors considered to demonstrate that the decision was reached in compliance with the PWFA.

Employer Responsibilities for Addressing Accommodation Needs Under the PWFA

How Employers Are Put on Notice

Employers can become aware of an employee’s need for reasonable accommodation either through direct communication with the employee or through other indirect or observable means. The following situations can put an employer on notice of an employee’s need for an accommodation, even if the employee does not inform the employer themselves:

Visible Limitations: An employer may notice physical signs of a limitation related to pregnancy, such as difficulty performing specific tasks.
Workplace Behavior or Performance: Changes in an employee’s ability to complete job duties or requests for adjustments (e.g. frequent breaks or modified tasks) can signal the need for an accommodation.
Medical Documentation: If the employee provides medical documentation for unrelated purposes that highlights limitations tied to pregnancy or childbirth, the employer may infer a need for accommodation.
Third-Party Observations: Co-workers, managers, or supervisors might raise concerns about an employee’s ability to perform specific tasks safely or effectively, bringing attention to a possible limitation.
Leave Requests: A request for leave related to a medical condition associated with pregnancy or childbirth might indicate the need for broader accommodations.

Employers should err on the side of caution by treating potential indicators as possible needs for reasonable accommodation and quickly taking steps to comply with the PWFA.

Steps Employers Must Take Once on Notice

Once an employer becomes aware of the need for accommodation, they are required to do the following:

Engage in the Interactive Process: Begin a dialogue with the employee to understand their limitations and explore reasonable accommodations.
Respond Promptly: Address accommodation requests without unnecessary delays to avoid noncompliance.
Evaluate Reasonable Options: Consider accommodations that align with the employee’s needs and the employer’s operational capacity, such as modified duties, flexible schedules, or temporary reassignments.
Document the Process: Keep detailed records of all communications, decisions, and steps taken to address the request.

Enforcement Mechanisms and Damages Awarded

The pregnant Workers Fairness Act (PWFA) is enforced by the Equal Employment Opportunity Commission (EEOC), which is responsible for addressing complaints and investigating potential violations. Employers should familiarize themselves with the enforcement process to identify potential compliance gaps, address violations promptly, and avoid the financial and reputational consequences of noncompliance.

Filing Complaints: As of June 27, 2023, employees or job applicants who believe their rights under the PWFA have been violated can file a complaint, referred to as a “charge,” with the EEOC.
EEOC Responsibilities: The EEOC is tasked with investigating charges to determine whether an employer has violated the PWFA, facilitating resolution through mediation or settlement discussions when appropriate, and initiating enforcement actions or litigation if violations remain unresolved
Remedies for Violations: Employers found in violation of the PWFA may be required to provide remedies, including:
- Back pay for wages lost due to the violation
- Reinstatement to the employee’s prior role, if termination was involved
- Compensation for other damages directly tied to the violation, such as attorney fees

Employers not in compliance with the PWFA risk financial penalties and legal disputes. Establishing clear policies and responding appropriately to accommodation requests can help minimize risks and encourage a compliant workplace.

Interaction with Other Laws

The Pregnant Workers Fairness Act (PWFA) operates alongside other federal laws that protect workers, including the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Each law addresses different aspects of employee rights, and understanding their distinctions is important for employers seeking compliance.

Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy, childbirth, or related medical conditions. It requires that pregnant employees be treated the same as others with similar ability or inability to work. The PWFA expands on the PDA by requiring employers to provide reasonable accommodations for pregnancy-related limitations without comparing the treatment of pregnant employees to other workers.

Americans with Disabilities Act (ADA)

The ADA is similar to the PWFA in that it protects employees with qualifying disabilities by requiring reasonable accommodations, unless doing so imposes an undue hardship. While the ADA covers certain pregnancy-related conditions that qualify as disabilities, the PWFA goes further by addressing limitations tied to pregnancy and childbirth that may not meet the ADA’s definition of a disability.

Key Differences from the PWFA

The PWFA expands legal protections by requiring accommodations for temporary pregnancyrelated limitations, which may not be covered under the PDA or ADA. Employers should evaluate requests with a full understanding of how these laws overlap to avoid gaps in compliance. Establishing clear policies and practices helps employers address legal obligations while providing meaningful support to their workforce.

Compliance Guidelines for Employers

Employers covered by the Pregnant Workers Fairness Act (PWFA) must take deliberate steps to meet their obligations under the law. Addressing these requirements helps employers avoid legal consequences and demonstrates a commitment to supporting employees. Some ways for employers to maintain compliance with the PWFA include:

Review and Update Policies: Employers should examine their current workplace policies to identify any gaps related to pregnancy accommodations. Updating employee handbooks to include specific guidance on requesting accommodations can provide clarity for both employees and management.
Train Supervisors and Managers: Managers and supervisors are directly involved in addressing accommodation requests and making sure they are handled appropriately. Providing training helps supervisors and managers recognize when a reasonable accommodation may be needed and how to handle such requests without delay or bias. This reduces the likelihood of missteps that could result in noncompliance.
Establish a Transparent Accommodation Process: Employees must have a straightforward way to request accommodations. A clear process reduces confusion and encourages employees to communicate their needs. Employers should offer multiple options for submitting requests, such as verbal or written communication, to accommodate different circumstances.
Engage in the Interactive Process: When an accommodation request is made, employers are required to engage in a dialogue with the employee to identify appropriate adjustments. Acting promptly and thoughtfully during this process demonstrates compliance and promotes a positive work environment.
Maintain Accurate Records: Documenting accommodation requests, employer responses, and the steps taken to address each request is an important part of demonstrating PWFA compliance. Thorough records provide evidence of compliance and help employers track patterns and identify opportunities for improvement.
Adapt to Updated Guidance: The EEOC periodically provides updates on the PWFA, which may impact how employers fulfill their obligations. Employers should stay informed about changes and revise their practices accordingly. Regularly reviewing workplace policies and procedures helps address new requirements and maintain compliance with current standards

Resources

Employers covered by the Pregnant Workers Fairness Act (PWFA) can utilize several resources to help them meet the law’s requirements. The available resources provide additional guidance on compliance and support efforts to create effective workplace policies.

EEOC Guidance: The Equal Employment Opportunity Commission (EEOC) offers detailed information about the PWFA, including explanations of employer obligations and employee rights

What You Should Know About the Pregnant Workers Fairness Act: This resource addresses frequently asked questions and provides examples of reasonable accommodations.
The Pregnant Workers Fairness Act Statute: This document outlines the specific legal language of the PWFA for reference.

Pregnancy Discrimination Act of 1978 (PDA): https://www.eeoc.gov/statutes/pregnancydiscrimination-act-1978

The Americans with Disabilities Act: https://www.ada.gov/

Educational Materials: The EEOC provides training materials designed to help employers educate managers and supervisors about their responsibilities under the PWFA. These resources emphasize the importance of responding appropriately to accommodation requests and understanding the interactive process.

Policy and Procedure Development: Employers can improve compliance by reviewing existing workplace policies and updating employee handbooks. Including clear guidance on how employees can request accommodations promotes transparency and consistency in handling accommodation requests.

Support from Conn Maciel Carey LLP: Conn Maciel Carey LLP’s Labor & Employment Group offers legal guidance to employers seeking to align their workplace practices with PWFA requirements. Our team assists with policy reviews, manager training, and strategies for addressing complex accommodation requests. Call (202) 715-6244 or send us an email to learn more.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.