The Pregnant Workers Fairness Act (PWFA) has quickly moved from “new law” to active enforcement priority. Effective June 27, 2023, the PWFA requires covered employers—generally those with 15 or more employees—to provide reasonable accommodations to qualified applicants and employees with known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship.
PWFA Goes Further, and Compliance is a Priority
The PWFA fills gaps left by prior federal protections such as the Pregnancy Discrimination Act (PDA), which prohibits discrimination because of pregnancy, childbirth, or related medical conditions, and the Americans with Disabilities Act (ADA), which may require accommodations when a pregnancy-related condition qualifies as a disability. The PWFA goes further by requiring accommodations for pregnancy-related limitations even when they don’t meet the ADA’s definition of disability. It can apply to employees who are pregnant, trying to become pregnant, recovering from childbirth, lactating, experiencing pregnancy-related medical issues, or dealing with postpartum conditions.
The Equal Employment Opportunity Commission (EEOC) has signaled that PWFA compliance is a priority. Since 2023, the EEOC has issued regulations and filed enforcement actions alleging failures to accommodate pregnancy-related limitations. Those actions have included claims that employers applied rigid attendance rules, refused modified schedules or breaks, failed to engage in an interactive process, required leave when other accommodations were available, or penalized employees for pregnancy-related absences and medical appointments.
What This Means for Employers
For employers, the core obligation should sound familiar: When an employee communicates they have a pregnancy-related limitation and need an adjustment at work, you should engage in an individualized, good-faith interactive process. The employee doesn’t need to use legal terms such as “PWFA,” “interactive process,” or “reasonable accommodation,” and the request doesn’t have to be in writing. A statement such as “I am having trouble standing for long periods because of my pregnancy,” or “I need time off for prenatal appointments,” may be enough to trigger the duty to evaluate accommodations.
Potential accommodations may include:
- More frequent restroom, water, food, or rest breaks;
- Seating for work that normally requires standing;
- Temporary relief from heavy lifting;
- Closer parking;
- Modified uniforms or safety gear;
- Schedule changes;
- Time off for prenatal, fertility, postpartum, or lactation-related medical appointments;
- Telework where feasible;
- Temporary reassignment;
- Light duty;
- Suspension of marginal job duties; or
- Leave for recovery from childbirth, miscarriage, stillbirth, or related medical conditions.
For postpartum employees, you should also consider lactation-related accommodations and coordinate PWFA obligations with the federal Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act and any applicable state law.
Be Aware of These Cautions
Two points are especially important. First, an employee may still be “qualified” under the PWFA even if they cannot perform an essential function temporarily, so long as the inability is temporary, the essential function can be performed in the near future, and the limitation can be reasonably accommodated. Second, employers may not require an employee to take leave if another reasonable accommodation would allow the employee to continue working. Leave may be appropriate when requested or when no other reasonable accommodation is available, but it shouldn’t be the automatic response.
You also should avoid overcorrecting. The PWFA prohibits you from forcing an accommodation on a pregnant employee who hasn’t requested one, except when the accommodation results from the interactive process. A supervisor shouldn’t unilaterally remove duties, reduce hours, transfer an employee, or place an employee on leave simply because the employee is pregnant or postpartum. Even well-intentioned decisions can appear discriminatory if they deny the employee work opportunities. The better approach is to explain the accommodation process and invite the employee to request assistance if needed.
Practical steps include updating pregnancy accommodation policies, training managers to recognize requests, routing requests to HR, and coordinating PWFA obligations with the ADA, the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964, the PUMP Act, and applicable state laws. You should also revisit attendance, leave, light-duty, and productivity policies to ensure you allow individualized exceptions when required.
Bottom Line
Pregnancy-related limitations should be treated as accommodation issues, not automatic reasons for leave, discipline, reassignment, or reduced opportunities. Employers that listen carefully, engage in the interactive process, and consider practical temporary adjustments will be better positioned to comply with the PWFA and avoid becoming the next example in the EEOC’s stepped-up enforcement campaign.
Jodi R. Bohr is a shareholder with Milligan Lawless, P.C., and a contributor to Arizona Employment Law Letter. She practices employment and labor law, with an emphasis on counseling employers on HR matters, litigation, and workplace investigations. She may be reached at jodi@milliganlawless.com or 602-792-3549.