Pregnant Workers Fairness Act Now in Effect

June 29, 2023

The Pregnant Workers Fairness Act (PWFA), the second pregnancy related federal law under President Biden’s Consolidated Appropriations Act, went into effect June 27, 2023. The first pregnancy related law, the PUMP Act became effective in April 2023 (check out our blog on the PUMP Act here). Here are our main takeaways on the PWFA:

Scope of PWFA: One notable characteristic of the PWFA is that it applies only to accommodations. Under the PWFA, covered employers are required to provide “reasonable accommodations” to an applicant’s or employee’s “known limitations related to pregnancy, childbirth, or related medical conditions” unless such accommodation will cause the employer “undue hardship.”

Who is a covered employer?: The new law specifies that “covered employers” include the following employers:

Private and public sector employers with at least 15 employees
Congress
Federal Agencies
Employment Agencies
Labor Organizations

What is a Reasonable Accommodation? The PWFA defines reasonable accommodations as “changes to the work environment or the way things are done at work.” Examples of accommodations include:

Ability to sit or drink water
Receive closer parking
Flexible work hours
Receive appropriately sized uniforms and safety apparel
Receive additional breaktime to use the bathroom, eat, and rest
Take leave or time off to recover from childbirth
Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Under PWFA, employers must provide reasonable accommodations unless it would cause an undue hardship, which is defined as a “significant difficulty or expense.”

Additional Protections: Under PWFA, employers cannot do the following:

Require an employee to accept a specific set of accommodations without a discussion between the employee and employer.
Deny an employee an employment opportunity or a job because they may need an accommodation.
Require an employee to take a formal leave if a reasonable accommodation would allow that employee to continue working.
Retaliate against an employee for reporting or participating in an investigation under PWFA violation or a claim or unlawful discrimination. Additionally, employers cannot interfere with an employee’s PWFA rights.

Implementation Timeline: The EEOC stated that it will begin accepting complaints under the PWFA on June 27, 2023 but the timing of complaint will be critical. In order for the PWFA to apply, “the situation complained about in the charge must have happened on June 27, 2023 or later.” Employees who require an accommodation before that date are entitled to accommodation under existing federal or state laws, such as Title VII or ADA. Additional details on existing laws that protect pregnant employees are available on the EEOC’s PWFA page.

Emphasis on Enforcement and Training: On June 27, 2023 the White House hosted a webinar commemorating the effective date of the PWFA. Representatives from the EEOC and the Department of Labor reiterated that the PWFA fills the gaps in existing pregnancy and anti-discrimination laws that left pregnant and nursing employees without “basic” protections. Specifically, the Administration reiterated that PWFA applies to job applicants as well as employees who are already working. The Administration also emphasized that federal agencies will take the enforcement of the PWFA and PUMP act very seriously and that it will process complaints immediately. Jessica Lumen, a representative from the Department of Labor, also noted that the Department will release additional resources on how to file a complaint, privacy door hangers for nursing employees, and training materials for employers.

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