Navigating the Pregnant Workers Fairness Act: A guide for employers

ARTICLE | May 04, 2023

The Pregnant Workers Fairness Act (PWFA), which takes effect on June 27, 2023, aims to safeguard pregnant and postpartum employees in the workplace by guaranteeing their right to reasonable accommodations. 

As an employer, it is essential to understand your responsibilities under this new law to avoid potential legal issues and ensure a safe and supportive work environment for all employees.

What is the PWFA?

The PWFA is federal legislation that applies to government and private employers with 15 or more employees. The law requires covered employers to provide reasonable accommodations to employees for pregnancy, childbirth, and other related medical conditions unless doing so would create an undue hardship on the employer. 

The law sets a high bar for what constitutes an undue hardship. An employer must generally show that the accommodation will be burdensome based on its cost and the employer’s financial resources. 

The PWFA also prohibits retaliation against employees who request reasonable accommodations or assert their rights under the law. For instance, firing or demoting an employee who requests reasonable accommodations could potentially be considered retaliation. It also prohibits the employer from denying the employee a job or opportunity based on their need for accommodation.

What are your responsibilities as an employer? 

Under the PWFA, you must provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would create an undue hardship on your business. 

Examples of reasonable accommodations may include:

• Allowing a pregnant employee to work from home

• Modification of duties to restrict heavy lifting or manual labor

• Providing a stool or chair for an employee who needs to sit or rest

• More flexible breaks

• Adjusting a work schedule to accommodate morning sickness

• Providing a private space (other than a bathroom) for lactation needs

• Time off for bedrest, postpartum recovery, or other related medical needs. 

It’s important to note that each accommodation must be tailored to the individual employee’s needs and the requirements of their job. You cannot make assumptions about what accommodations an employee may need, so it is essential to communicate with the employee and engage in an interactive process to determine what accommodations can be made. 

The interactive process, as required by the EEOC, is a collaborative effort between an employer and employee to identify appropriate accommodations. This process typically involves information gathering and identifying potential accommodations that could address the employee’s limitations without causing undue hardship to the company. Once an appropriate accommodation is identified, it should be implemented promptly and documented. If the accommodation is ineffective, the interactive process should be revisited to find a suitable alternative. 

It’s also important to be mindful of confidentiality when handling accommodation requests and related communications. This includes keeping medical information and other sensitive details about the employee’s situation confidential, as well as ensuring that the accommodation process is conducted with discretion. Employers should only share such information with personnel with a legitimate need to know.

What are the consequences of non-compliance?

Employers who fail to provide reasonable accommodations to employees or retaliate against employees who request accommodations may face legal consequences. The EEOC will start accepting charges under the PWFA on June 27, 2023. If an employee files a complaint against your business, you may be subject to an investigation by the EEOC, which could lead to legal action and penalties. 

What steps should you take to comply with the PWFA?

As the implementation date of the PWFA approaches, there are several steps you should take to ready your organization for compliance. Ensuring a smooth transition and adherence to the new guidelines will foster a supportive work environment and mitigate legal risks. 

Here are some key actions to take: 

1. Familiarize yourself with the law. Understand the provisions of the PWFA, as well as how they may intersect with other relevant laws, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Knowledge of the law’s requirements will enable you to make appropriate accommodations for your employees. 

2. Update policies and handbooks. Revise your company policies, employee handbooks, and any other relevant documentation to reflect the new law’s requirements. Ensure the revised documents explicitly address reasonable accommodations for pregnant workers and any potential retaliation based on pregnancy or related medical conditions. 

3. Train management and HR personnel. Provide training to supervisors, managers, and human resources staff on the PWFA’s requirements. This will help them respond appropriately to employee requests and handle any related issues that may arise. 

4. Communicate with employees. Notify all employees of the upcoming changes and the company’s commitment to comply with the PWFA. Encourage an open dialogue and make it clear that employees can come forward with concerns or requests for accommodations without fear of retaliation. 

5. Establish a process for handling accommodation requests. Develop an interactive system for processing and responding to accommodation requests. Ensure that the process is fair, consistent, and timely and adheres to any relevant confidentiality requirements. 

6. Review and adjust physical workspaces. Assess your work environment and make any necessary modifications to ensure it is safe and accessible for pregnant employees. This may include providing additional seating, adjusting workstation heights, or creating designated spaces for lactation. 

7. Maintain detailed records of accommodations and communications. Keep thorough documentation of all accommodation requests and any relevant communications with employees. This will not only help you track your organization’s compliance with the PWFA, but also provide valuable evidence in the event of any disputes or legal claims. Ensure that these records are stored securely and treated with the appropriate level of confidentiality. 

The Pregnant Workers Fairness Act is an important piece of legislation that will impact employers across the United States. As an employer, it is crucial to understand your responsibilities under this new law and take steps to comply with its requirements. Failing to do so could lead to legal consequences and damage your organization's reputation. If you have any questions or would like to discuss how the PWFA may impact your business, don't hesitate to contact our office. Our expert advisors are here to help you navigate this complex area of law and ensure your workplace is safe and supportive for all employees.

This article is intended to provide a brief overview of the PWFA and is for informational purposes only. It should not be construed as legal advice or a substitute for speaking with one of our expert advisors.