Federal Pregnant Workers Fairness Act Takes Effect

Federal employment law is about to give birth to some long-overdue requirements. As of June 27, 2023, employers with 15 or more employees must provide pregnancy-related accommodations to employees and applicants under the federal Pregnant Workers Fairness Act (PWFA). Below we’ll refer to employees and applicants collectively as “employees.”

Pregnancy Related Accommodations

Under the PWFA, employees are entitled to accommodations for a condition related to or affected by pregnancy, childbirth, or a related medical condition. The condition can be physical or mental. Pregnancy-related conditions include, among others, morning sickness, gestational diabetes, post-partum depression, and lactation.

This law expands employer obligations beyond what is already required by the Americans with Disabilities Act (ADA) in that being entitled to a pregnancy-related accommodation does not require that the employee’s condition rise to the level of disability. Also, employees are entitled to accommodations even if they can’t perform their essential job functions on a temporary basis.

Possible accommodations include but aren’t limited to:

• Providing more frequent or longer breaks
• Modifying a food or drink policy
• Providing seating or allowing the employee to sit more frequently if their job requires standing
• Observing limits on lifting
• Providing job restructuring, light duty, or a modified work schedule

Employers can’t require an employee to take leave if a reasonable on-the-job accommodation is available. Like the ADA, the employer and employee should engage in the interactive process to determine what reasonable accommodations can be provided. However, if the employer is willing to grant the employee’s request, the interactive process is not required.

Note that many states have already implemented pregnancy accommodation laws, some of which may be more generous than the PWFA. Employers need to apply the law—or the aspect of each law—that is most favorable to employees.

Undue Hardship Exception

Employers don’t have to provide an accommodation if doing so would cause an undue hardship on the operation of the employer’s business. Undue hardship is defined as “an action requiring significant difficulty or expense,” the same as under the ADA. This is a high standard for employers to meet.

Action Items

• Add a pregnancy accommodations policy to your handbook if you don’t already have one
• If you’re subject to a state law that provides similar accommodations, make sure your policy captures the most employee-friendly aspects of the applicable laws
• Ensure that managers are aware of the law and types of accommodations that may be required