Heard It on the Hotline: Pregnant Workers Fairness Act

Q: What do employers need to know about the new Pregnant Workers Fairness Act (PWFA)?

A: The Pregnant Worker Fairness Act (PWFA) became effective on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) anticipated publication of final regulations by December 29, 2023. As of the writing of this publication, the regulations have yet to be published.

The proposed regulations define a covered employer as one who employs 15 or more employees. Covered employers will need to provide reasonable accommodations for employees and applicants due to pregnancy, childbirth, or a related medical condition. Under the PWFA, these conditions are not well defined and encompass many scenarios. Accommodations must be provided unless they create an undue hardship for employers. Unlike the Americans with Disabilities Act (ADA), an employee or applicant who cannot perform the essential functions of their job may qualify for accommodation under the PWFA. Also unlike the ADA, the employee or applicant does not need a specific severity level. Accommodations under PWFA can be requested for up to 40 weeks. While the definition of undue hardship is generally the same as it is under the ADA, employers should consider other factors, such as:

• Length of limitation.
• Other available work.
• Precedent set for accommodation.
• The ability to secure temporary coverage during the period of accommodation.
• The ability to move goals or deadlines to allow for the accommodation.

The new regulations identify some accommodations that should almost always be provided by covered employers if requested. They include:

• Allowing an employee to drink water in their work area.
• Allowing an employee to have additional restroom breaks.
• Allowing an employee to sit or stand as needed.
• Allowing an employee additional break time to eat or drink.

In addition to the accommodation requirements, the PWFA also prevents an employer from:

• Requiring an employee to accept an accommodation without discussion. This is similar to the interactive process under the ADA.
• Denying an employee opportunities based on their needed accommodations.
• Requiring leave if accommodations can be made to allow the employee to continue working.
• Retaliating against or interfering with an employee’s legal rights under the PWFA.

Next steps: Employers should review their existing policies to ensure they are ready to comply with the new regulations.

If you have questions on FMLA protections and obligations, MRA’s 24/7 HR Hotline Advisors are here to help at 866-HR-Hotline (866.474.6854) or email [email protected].