The Pregnant Workers Fairness Act: Employer Compliance Guide
What employers need to know about the Pregnant Workers Fairness Act, including covered accommodations and implementation steps.
AEA Editorial Team
A New Federal Mandate
The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, creating a new right for employees and applicants to receive reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions. The law applies to employers with 15 or more employees and is enforced by the EEOC.
While the ADA already required accommodations for pregnancy-related conditions that rise to the level of a disability, the PWFA goes further. It covers temporary, pregnancy-related limitations that may not qualify as disabilities, such as morning sickness, the need for more frequent restroom breaks, or restrictions on lifting.
What the Law Requires
The PWFA requires employers to provide reasonable accommodations to qualified employees with known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the employer. The law borrows the ADA's framework for reasonable accommodation and undue hardship but applies it to a broader set of conditions.
Key provisions include:
- Employers cannot require an employee to take leave if another reasonable accommodation would allow the employee to continue working.
- Employers cannot deny employment opportunities based on the need for accommodation.
- Employers must engage in an interactive process to identify appropriate accommodations, similar to the ADA process.
- Retaliation is prohibited against employees who request or use accommodations.
Common Accommodations
The EEOC's proposed regulations and interpretive guidance identify several accommodations that will virtually always be considered reasonable and not an undue hardship:
- Allowing more frequent restroom breaks
- Permitting an employee to carry and drink water
- Allowing seating for jobs that are normally performed standing, and standing for jobs normally performed seated
- Providing closer parking
- Allowing flexible scheduling for medical appointments
- Permitting temporary light duty or modified lifting restrictions
- Providing additional break time for pumping breast milk
These are not the only possible accommodations. The interactive process should identify the specific limitations and the accommodations that would address them effectively.
The Interactive Process
When an employee communicates a pregnancy-related limitation and a need for accommodation, even informally, the employer's obligation to engage in the interactive process begins. This process should:
- Confirm the employee's limitation and how it affects their ability to perform their job
- Identify potential accommodations through discussion with the employee
- Evaluate the feasibility of each option
- Implement the chosen accommodation promptly
- Follow up to ensure the accommodation is effective
Medical documentation may be requested in some cases, but the EEOC has cautioned that employers should not require documentation for obvious or commonly known pregnancy-related limitations like the need for bathroom breaks or water.
How This Differs from Existing Law
Before the PWFA, pregnant employees had to rely on the ADA (which required a disability), Title VII's pregnancy discrimination provisions (which did not include a clear accommodation mandate), or state laws (which varied widely). The PWFA fills the gap by creating a standalone federal right to accommodation for pregnancy-related limitations.
Employers in states with existing pregnancy accommodation laws, such as California, New York, Illinois, and New Jersey, are already familiar with many of these requirements. However, the federal law may cover situations that state laws do not, and the most protective standard applies.
Implementation Steps
1. Update your accommodation policy. Ensure your policy explicitly covers pregnancy, childbirth, and related medical conditions as grounds for reasonable accommodation.
2. Train managers and HR. Frontline managers must understand that informal requests for accommodation trigger the interactive process. They should be trained to recognize accommodation requests and route them appropriately.
3. Review job descriptions. Ensure essential functions are accurately documented. This information is critical for determining whether an accommodation is reasonable.
4. Do not default to leave. The PWFA specifically prohibits requiring leave when another accommodation would allow the employee to keep working. Explore all options before suggesting leave.
5. Document the process. Maintain records of accommodation requests, the interactive process, and the accommodations provided or denied, with reasons.
The PWFA represents a significant expansion of workplace protections for pregnant workers. Employers who already have strong accommodation practices will find compliance straightforward. Those who do not should use this as an opportunity to build a robust process.