Pregnant Workers Fairness Act- What to Know
What is it?
The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The PWFA is a federal law that expands existing workplace protections for pregnant employees. The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship. An employer must provide a pregnant worker a reasonable accommodation, arrived at through an interactive process between employer and employee, even if they cannot perform all their essential job duties, so long as the inability to perform those duties is temporary. An employer also cannot require an employee to take any paid or unpaid leave for their pregnancy related condition, unless no other reasonable accommodations are available, or the employee chooses to take leave. Finally, an employer may not deny employment or take adverse action against an employee because of their need for a pregnancy related accommodation.
Who The PWFA Applies To
The PWFA applies to all employers with 15 or more “qualified employees”. A “qualified employee” is defined broadly as an employee or applicant:
- a) who can perform their job’s essential functions either with or without reasonable accommodations; or
- b) whose inability to carry out an essential function of their job is only temporary and can be reasonably accommodated.
PWFA in Relation to ADA and PWA
The PWFA fills a gap in coverage of protection for pregnant workers created by the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). The PDA prohibits employers covered by Title VII from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. However, the PDA is limited in scope in the sense that a pregnant employee can only make a claim of discrimination if they are denied accommodations that those who are “similar in their ability or inability to work” are given. In other words, employers under the PDA could deny a pregnant worker’s accommodations so long as the accommodation is similarly denied for all pregnant employees.
The ADA prohibits discrimination on the basis of a disability and requires reasonable accommodations be made to qualified employees that have disabilities. In the context of pregnancy, an employer only has to accommodate a women’s pregnancy-related medical restrictions. In other words, pregnancy alone is not considered a disability under the ADA.
The PWFA is distinguished from the PDA and ADA because it does away with any “similarly situated” or “disability” caveat. Instead, employers must provide all qualified employees with reasonable accommodations necessitated by pregnancy, childbirth, or related medical conditions, unless doing so causes an undue hardship. The PWFA does not take away from the protections that the PDA and ADA provide, but simply adds more of it for pregnant employees.
What the PWFA Requires of Employers
The PWFA has five requirements that all qualified employers must follow:
- An employer must make reasonable accommodations to their employees known limitations related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.
- An employer cannot require an employee affected by pregnancy, childbirth, or related medical conditions, to accept an accommodation unless it is reasonable and arrived at through an interactive process between employer and employee.
- An employer cannot deny employment opportunities to an employee if such denial is based on having to provide them reasonable accommodations.
- An employer cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided.
- An employer cannot take adverse action against an employee on account of an employee requesting or using a reasonable accommodation.
PWFA and State Law
The PWFA is a federal law that sets a baseline standard for qualified employers across the country living in states that might not otherwise require them to accommodate pregnancy or offers less protection than the PWFA. The PWFA does not replace other federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
What if the Employer violates the PWFA?
A PWFA claim is similar to a Title VII claim. After an employee has exhausted all administrative remedies, they may then bring a private action against their employer. However, the employer can avoid liability under the PWFA if the employer can show they demonstrated good faith efforts to consult with the pregnant employee to identify and make available reasonable accommodations that “would provide such employee with an equally effective opportunity” and not cause undue hardship for the employer.
If you haven’t done so already, make sure you have posted up-to-date EEOC Know Your Rights posters which cover PWFA. Downloadable posters can be found here: https://www.eeoc.gov/poster. If you have any questions about the PWFA, feel free to contact me at
Posted by Hannah Teig.
