Five baby steps to Pregnant Workers Fairness Act compliance

January 19, 2024

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Now is the time to familiarize yourself with the Pregnant Workers Fairness Act (PWFA), new legislation unveiled in June 2023 to expand rights and protections for pregnant and postpartum employees in the workplace.

With 72% of working women likely to become pregnant while employed and 23% considering leaving their jobs due to lack of reasonable accommodations or fear of discrimination, it's imperative for you and your organization to understand the PWFA and its implications.1

Here are five actionable steps to help ensure compliance with the PWFA:

1. Familiarize yourself with the PWFA

Take the time to review the PWFA statue, pending regulations and EEOC resources. Pay close attention to key PWFA definitions defined in the statue such as “known limitations”, "related medical conditions" and "undue hardship." The PWFA only applies to “reasonable accommodations” and known limitations to complete essential functions related to pregnancy, childbirth or related medical conditions.

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Important note: The PWFA bridges the gap between the PDA and ADA by requiring reasonable accommodations regardless if it rises to the level of a disability under the ADA.

2. Consider the intersection of PWFA, PDA, ADA, and FMLA

When addressing "reasonable accommodation" requests or inquiries related to the PWFA, be mindful of the potential overlap with relevant federal, state or local laws. Over 30 states have their own laws providing accommodations for pregnant workers. The PWFA does not replace any existing laws.

Consider the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), as they may provide greater protection or have different requirements. In some cases, the PWFA provides broader rights to pregnant employees or those affected by pregnancy (through childbirth and related medical conditions) than the ADA.

Furthermore, if a reasonable accommodation exists that does not impose an "undue hardship" on the employer, under the PWFA qualified employees cannot be compelled to take leave, regardless of whether it is paid or unpaid.

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Unlike the FMLA, there is no waiting period for eligibility under the PWFA.

3. Promote awareness of the PWFA within your organization

Take a pulse check on your compliance, share this article with your team, supervisors and HR professionals to promote awareness and understanding of the PWFA. Here are some actions you can take to improve information dissemination within your organization:

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    Host an open forum to ensure all employees are aware of the PWFA.
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    Designate an HR professional as the "PWFA Subject Matter Expert" to provide information and answer questions.
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    Update internal policy materials, display information in accessible areas and share digital resources for those seeking information.

4. Review your internal process and existing forms

As of June 27, 2023, employees can file a PWFA violation complaint against your business with the EEOC. Establishing an "interactive process" for streamlined PWFA accommodation requests, compliance is essential. This process should include clear guidelines for requesting accommodations, timely responses and consistent protocols. Currently, the request for accommodation under the PWFA must identify the “known limitation”. Additionally, there are no specific key phrases or words that must be used in the request. Having a defined protocol in place can be beneficial in the event of any disputes or legal claims. 

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Important note: The request for accommodations does not necessarily need to be in written form and can be communicated verbally.

5. Be proactive in your accommodations planning and requests

You and your employee must discuss the accommodations together, especially considering that needs and accommodation requests may vary, from morning sickness hindering start times to additional breaks and closer parking.

By following the above steps, you can ensure that you and your team are adhering to PWFA guidelines and prepared to provide the necessary accommodations for pregnant workers.

Please note, this information is intended to be educational only and was accurate upon date of publishing. 

1. EEOC, What You Should Know About the Pregnant Workers Fairness Act, August 7, 2023.