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  • Writer's pictureRic Armstrong

What You Should Know About the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s 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 PWFA went into effect on June 27, 2023. On April 15, 2024, the EEOC issued its final regulation to carry out the law. The regulation went into effect on June 18, 2024.

The PWFA applies only to accommodations. Other laws that the EEOC enforces make it illegal to fire or otherwise discriminate against employees or applicants on the basis of pregnancy, childbirth, or related medical conditions.

The PWFA does not replace federal, state, or local laws that are more protective of workers (used here to mean job applicants and employees) affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that require employers to provide accommodations for pregnant workers.

In some situations, workers affected by pregnancy, childbirth, or related medical conditions may also be entitled to receive an accommodation under two other laws the EEOC enforces, Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). Therefore, the EEOC will continue to accept and process charges involving a lack of accommodation regarding pregnancy, childbirth, or related medical conditions under Title VII and/or the ADA as well as under the PWFA.

Which employers does the PWFA apply to?

The PWFA applies to private employers and public sector employers (state and local governments) that have 15 or more employees. It also applies to Congress and Federal agencies, and to employment agencies and labor organizations.

Who does the PWFA protect?

The PWFA provides for reasonable accommodations for qualified applicants or employees who have known limitations. Under the PWFA, “limitations” are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

What does the PWFA prohibit?

Covered employers must not:

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.

What is a “reasonable accommodation” and what are some examples?

“Reasonable accommodations” are changes in the work environment or the way things are usually done at work. Some examples of possible reasonable accommodations under the PWFA include:

  • 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.

Does a covered employer have to provide leave as a reasonable accommodation?

Leave can be a reasonable accommodation that an employee requests under the PWFA.  An employer does not have to provide leave (or any other reasonable accommodation) if it causes a undue hardship.

What is “undue hardship”?

An employer does not have to provide a reasonable accommodation under the PWFA if it causes the employer an undue hardship. “Undue hardship” means significant difficulty or expense.

Who is a “qualified employee” or a “qualified applicant”?

An employee or applicant can be “qualified” under the PWFA in two ways.

First, an employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. “Essential functions” are the fundamental duties of the job.

Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water.

If an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job.

The PWFA requires reasonable accommodation for a qualified employee or applicant with a “known limitation.” What is a “known limitation”?

Under the PWFA, “known” means the employee or the employee’s representative (or the applicant or the applicant’s representative) has communicated to the employer about the limitation.

Under the PWFA, “limitation” means “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”

A limitation can be an impediment or problem that is minor or modest and can be episodic (such as migraines or morning sickness). It can be that the employee or applicant needs to take actions for their health or the health of their pregnancy—such as not being around certain chemicals; not working in the heat; or limiting or avoiding certain physical tasks, for example lifting, bending, walking, standing, or running. It can be that the employee needs to attend health care appointments for the pregnancy, childbirth, or related medical condition itself.

What is included in “pregnancy, childbirth, or related medical conditions”?Pregnancy, childbirth, or related medical conditions” includes uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.  

Can employers require that the employee or applicant provide information from the employee’s health care provider about the limitation?

In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy.

Although an employer is not required to seek medical information from an employee’s health care provider, the employer may seek information from the employee’s health care provider under limited circumstances. An employer may not require that the employee seeking the accommodation be examined by a health care provider selected by the employer.

Should you have any questions or concerns about the Legal Issues addressed in this blog post, please reach out to Derek Saunders, Keith Strahan, or Richard Armstrong of our firm, shown here:


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