The Pregnant Workers Fairness Act Goes into Effect: What It Means for Pregnant and Post-Partum Employees

By Lauren Hoye and Jesse Bernstein

On Tuesday, June 27, 2023, the Pregnant Workers Fairness Act (PWFA) went into effect, just about seven months after President Biden signed it into law as part of the government funding bill. The PWFA provides that government employers and private employers with at least 15 employees are required to make “reasonable accommodations” for workers who need them due to pregnancy, recent childbirth, or related medical conditions.

To be enforced by the Equal Employment Opportunity Commission, the law applies only to reasonable accommodations. Existing laws enforced by the EEOC already made it illegal to discriminate or retaliate against workers on the basis of pregnancy, childbirth, or related medical conditions.

In guaranteeing a right to reasonable accommodations in these circumstances, the PWFA closes a gap that had been left open in federal law in which pregnant and post-partum workers had no remedy if they needed accommodations in order to continue working. Prior to the PWFA, pregnant and post-partum workers were entitled to accommodations only if they could identify other similarly situated people in their workplace who received accommodations or if they had a pregnancy-related disability. This left many pregnant and post-partum workers without the necessary legal protections to allow them to continue working during their pregnancy or post-pregnancy.

The PWFA follows the PUMP for Nursing Mothers Act, which expanded protections for managing breastfeeding needs at work. The PWFA builds on those discrete gains by delivering a general cause of action to covered workers who are denied reasonable accommodations necessary due to pregnancy and/or recent childbirth.

While the EEOC has not yet issued guidelines as to the types of accommodations that will be required, examples might include:

flexible scheduling to accommodate medical appointments and/or morning sickness,
water, food, and restroom breaks,
light duty and/or excusal from heavy lifting or working with dangerous chemicals,
changes to uniform or dress code, and/or
options for sitting where standing previously was mandated.

The PWFA also covers accommodations for abortion appointments or pregnancy loss recovery, according to the American Civil Liberties Union and the Center for WorkLife Law.

It is important to note that while the PWFA gives workers a right to reasonable accommodations for pregnancy, recent childbirth, and/or related conditions, as with the Americans with Disabilities Act (ADA), employers are not required to provide an accommodation that would be significantly difficult or expensive – that is, an accommodation that would cause an “undue hardship” for the employer. What constitutes an undue hardship will depend on many factors, including the employer’s financial resources and the costs involved in offering the accommodation.

Further, as with the ADA, under the PWFA, an employer must engage in the “interactive process” with workers seeking reasonable accommodations to determine what accommodations are being sought and whether the employer must provide them.

If you have questions about the rights of pregnant and/or post-partum workers, the experienced labor attorneys at Willig, Williams & Davidson are available to offer guidance to their clients on this issue.