The Pregnant Workers Fairness Act (PWFA) is an exciting (and long overdue) change to federal employment law that seeks to improve the health and economic security of pregnant employees by making thousands of workplaces more pregnancy friendly. It does this by requiring that employers with 15 or more employees provide pregnancy-related accommodations to employees and applicants.
Depending on an employer’s size, location, and general approach to pregnancy in the workplace, this could be a big deal or business as usual. Let’s break it down.
How is PWFA different from the Americans with Disabilities Act?
Employers might be thinking, “I already provide accommodations for pregnancy disability; how is this different?” That’s a good question. PWFA 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 an employee’s condition rise to the level of a disability.
What conditions require pregnancy-related accommodations?
Under the new law, employees are entitled to accommodations for known limitations related to or affected by pregnancy, childbirth, or related medical conditions, whether mental or physical. Pregnancy-related conditions include:
- Morning sickness.
- Gestational diabetes.
- Post-partum depression.
What kinds of accommodations might employers need to make to comply with PWFA?
PWFA acknowledges that pregnancy comes with an assortment of challenges—many of them not disabling, but still very real—and requires that employers make the workplace more accommodating of those challenges. For instance, employers might need to:
- Provide more frequent or longer breaks.
- Allow exceptions to a food or drink policy so an employee can eat more frequently, or at their work area.
- Provide seating or allowing an employee to sit more frequently if their job requires standing.
- Observe limits on lifting.
- Provide closer parking.
- Allow an employee to come in later when experiencing morning sickness.
- Shift an employee to light duty.
Employers should keep in mind that many states have already implemented pregnancy accommodation laws, some of which may be more generous than PWFA. Employers will need to apply the law—or the aspect of each law—that is most favorable to employees.
What is the accommodation process like?
PWFA doesn’t allow employers to automatically ask for a doctor’s note or other proof of the need for accommodation. Much like how an employer shouldn’t ask someone in a wheelchair to prove that they need a ramp, if a visibly pregnant employee is asking for a common-sense accommodation, an employer shouldn’t ask for documentation.
That said, PWFA allows for, and in some cases requires, use of the interactive process. This is the same interactive process employers are familiar with from the ADA, and it might include asking for input from an employee’s medical care provider to better understand their limitations and how they can be addressed in the workplace. But employers aren’t required to go three rounds with employees if they’re willing to provide the desired accommodation. Remember, the point of the law is to make work-life easier on pregnant employees, not increase the administrative burden for employers.
Does PWFA have an undue hardship exception?
Yes, similar to the ADA, there is an exception to providing an accommodation if it 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. This is a high standard for most employers to meet and the exception should be used sparingly, if at all.
Again, employers should be aware of any state law regarding pregnancy accommodation—some don’t allow the use of the undue hardship exception for particular requests like seating or lifting restrictions.
Okay. I’m an employer with 15 or more employees who are or may become pregnant. What should I do now?
- First, make sure that your HR people, managers, and anyone else who might receive a request for accommodation understands PWFA and can deal with those pregnancy-accommodation requests appropriately.
- Second, draft a policy for your new-hire packet and/or employee handbook so that employees know their rights under PWFA and the process for requesting an accommodation.
- Finally, rejoice in this new clarity! Employers can now give pregnant employees “special treatment” without worrying that it’s discriminatory toward non-pregnant employees. On the flip side, employers who didn’t provide pregnancy benefits and accommodations previously are less likely to find themselves on the receiving end of a sex-discrimination lawsuit. While employers often bristle at new regulations, PWFA should prove to be a win-win for employers and employees alike.