By Liz Hartsel
What is the PWFA?
On December 29, 2022, President Biden signed two bills into law aimed at enhancing protections for pregnant and nursing parents in the workplace: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (PUMP Act.)*
Beginning June 27, 2023, employers with 15 or more employees are required to provide “reasonable accommodations” to workers for “known limitations related to pregnancy, childbirth, and related medical conditions.”
What is a Reasonable Accommodation?
“Reasonable accommodations” are changes to the work environment or the way things are usually done at work.
Reasonable accommodations under the PWFA may include:
- the ability to sit or drink water;
- closer parking;
- flexible hours;
- appropriately sized uniforms and safety apparel;
- additional break time to use the bathroom, eat, and rest;
- take leave or time off to recover from childbirth;
- be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations, which is a significant difficulty or expense for the employer.
What Are Employers Prohibited from Doing Under the PWFA?
The PWFA extends protections similar to those provided under the Americans with Disabilities Act (“ADA”). Like the ADA, this standard applies “unless such [a] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”
The PWFA prohibits covered employers from:
- Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfering with any individual’s rights under the PWFA.
How Does the Federal PWFA Compare with State Laws?
The PWFA applies only to accommodations, and does not replace federal, state, or local laws that provide greater protections to workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.
In Colorado, for example, employers (regardless of the number of employees they have) must: (1) treat disabilities caused by pregnancy, miscarriage, abortion, and childbirth the same as other temporary disabilities; and (2) provide reasonable accommodations for an applicant or an employee for health conditions related to pregnancy or physical recovery from childbirth, unless the reasonable accommodation would cause an undue hardship on the business.
What Should Employers Do Now to Comply with the PWFA?
- Review their accommodation policies to ensure compliance with the PWFA and applicable state and city laws; and
- Ensure supervisors and HR understand the PWFA requirements and company responsibilities to recognize potential employee requests for accommodations.
If you have questions about ensuring compliance with the PWFA or state pregnancy accommodation laws in your workplace, please contact Liz Hartsel or another Fortis employment law team member.
* Please see Fortis’s previous blog post on the PUMP Act, here.