Everything You Need to Know About the Pregnant Workers Fairness Act

On June 27, 2023, the Pregnant Workers Fairness Act (PWFA), signed by President Biden in December 2022, officially went into effect. 

This historic piece of legislation mandates that “reasonable accommodations” be made for workers based on pregnancy, childbirth, or related medical conditions—unless providing them would impose an “undue hardship” on the employer. 

The Equal Employment Opportunity Commission—tasked with issuing regulations to implement the PWFA by the end of the year—designed the law to ensure that pregnant and postpartum workers can prioritize their health without jeopardizing their paychecks or jobs. 

Reasonable Accommodations

They did so by carving out “accommodations” for pregnant workers, noting on their website that “existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers based on pregnancy, childbirth, or related medical conditions.” 

They’re mainly referencing the Pregnancy Discrimination Act, enacted in 1978. 

The PWFA, on the other hand, is about providing employers with specific language and guidance around how to make a workplace that is safe, comfortable, and accessible for workers who are pregnant or have given birth.

According to the EEOC, “reasonable accommodations” are changes to the work environment or how things are usually done. On August 11, they issued a Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act, which defined “reasonable accommodations” as:

• the ability to sit down or drink water
• access to the closest parking spots
• more flexible hours
• appropriately sized uniforms and safety apparel for a changing pregnant body
• additional break time to use the bathroom, eat, and rest 
• leave or time off to recover
• exemptions from strenuous activities or any activities that require the handling of materials not safe for pregnancy 

Timing and Enforcement 

These accommodations, as well as the EEOC policies for enforcing the PWFA, will officially take effect after a public review period (the public can submit comments during the 60-day period, which ends on October 10), revisions, and approval by the necessary parties—and will apply to employers with 15 or more employees. The final regulations will be published by the end of the year. 

Interestingly, however, the EEOC started accepting PWFA charges since the law took effect on June 27, meaning that some organizations might already be in violation of the law. 

That means, it’s time for HR departments to revisit their employment practices and train their managers on PWFA accommodations to remain compliant and avoid hefty fines. 

Exceptions: Undue Hardship 

One component of the law that HR professionals should focus on when updating policies and team members? Undue hardship.

Among the proposed regulations in the PWFA is a rule requiring employers to consider eliminating one or more essential functions of a job for up to 40 weeks during an employee’s pregnancy and for 40 to 52 weeks after an employee returns to work after childbirth unless doing so poses an “undue hardship” (significant difficulty or expense).  

When an employer is considering whether suspension of an essential function will create an undue hardship, employers should look at the following: 

• the length of time that the employee or applicant will be unable to perform the essential function(s) 
• whether there is work for the employee to accomplish by allowing the employee to perform all the other functions of the job, transferring the employee to a different position, or otherwise
• the nature of the essential function, including its frequency
• whether the covered entity has temporarily suspended the performance of essential job functions for other employees in similar positions
• whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s)
• whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long

A Trickier Compliance Landscape, A Better Place for Pregnant Workers

According to the New York Times, in 2022, 23% of mothers considered leaving their jobs because of a lack of reasonable accommodations, and they’re not alone. 

Every year, over 2000 employees file pregnancy discrimination complaints with the EEOC, many of which are based on a lack of accommodation. 

Thankfully, millions of pregnant and postpartum workers across the U.S. will get access to longer breaks and shorter hours to rest and recover, more days off to attend medical appointments, more comfortable work environments, and more when the Pregnant Workers Fairness Act gets finalized at the end of the year.

And, while the PWFA will mean a trickier compliance landscape for employers, it’s a small price to pay to make the workforce a more equitable, inclusive, and accessible environment for all people.