The Pregnant Workers Fairness Act (PWFA)

It’s well known that the Pregnancy Discrimination Act of 1978 was amended to Title VII of the Civil Rights Act of 1964 to “prohibit sex discrimination on the basis of pregnancy” for employers with at least fifteen employees. It covers discrimination “on the basis of pregnancy, childbirth, or related medical conditions.”

HR departments should be aware, however, that the additional 2023 Pregnant Workers Fairness Act (PWFA) also requires a covered employer to provide a “reasonable accommodation” to a qualified employee’s or applicant’s known physical or mental limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer an “undue hardship.” In April of 2024, the Equal Employment Opportunity Commission (EEOC) issued its final ruling and guidelines for the PWFA’S implementation.

Title VII, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act, which is enforced by the U.S. Department of Labor and provides protections for employees to express breast milk at work) all protect qualified employees from discrimination on the basis of pregnancy, childbirth, or related medical conditions.

The PWFA, however, applies only to accommodations for pregnancy, childbirth, or related medical conditions. It doesn’t replace the many federal, state, and local laws that are more protectiveof job applicants and employees affected by such conditions. It should be noted that the term “abortion” is included in the regulation's definition of “pregnancy, childbirth, or related medical conditions,” consistent with the EEOC’s and courts’ longstanding interpretation of the same phrase in Title VII.

According to the EEOC, examples of reasonable accommodations for qualified employees under the PWFA might include:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;

• Changing food or drink policies to allow for a water bottle or food;

• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;

• Changing a uniform or dress code or providing safety equipment that fits;

• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;

• Telework;

• Temporary reassignment;

• Temporary suspension of one or more essential functions of a job;

• Leave for health care appointments;

• Light duty or help with lifting or other manual labor; or

• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

An employee or job applicant can be “qualified” under the PWFA in two ways:

First, someone who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. This might be, say, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water to perform the essential functions of the job.

Second, someone who can’t perform the essential functions of the job with or without a reasonable accommodation can be qualified as long as:

• Their inability is “temporary”;

• They could perform the essential functions “in the near future”; and

• Their inability to perform the essential functions can be reasonably accommodated.

This might mean someone who needs, say, a lighter work assignment..

Under the PWFA, a reasonable accommodation is required for a qualified applicant with a “known limitation” arising out of pregnancy, childbirth, or related medical conditions. In other words, a limitation that’s been communicated to the employer. The limitation could be something minor or episodic (such as migraines or morning sickness). The employee or applicant might need to take actions for the sake of their health or their pregnancy—such as not working in the heat, not lifting, attending healthcare appointments, etc.

Remember, accommodating an employee for pregnancy, childbirth, or related medical conditions is not just compassionate, it’s the law.