The Pregnant Workers Fairness Act: What Employers Need To Know

A guide to compliance and best practices for accommodating pregnant and postpartum workers

By Jordi Romero, Factorial

For years, interested parties have been working behind the scenes to secure greater accommodation for pregnant and postpartum women in the workplace. Late last year, this movement saw its biggest victory yet, when President Biden signed the Pregnant Workers Fairness Act (PWFA) into law with bipartisan support as well as the backing of groups as diverse as the National Women's Law Center and the US Chamber of Commerce.

When the law goes into effect on June 27, 2023, it will have a seismic effect on the professional lives of pregnant and postpartum women, especially those with lower-wage and more physically demanding jobs. Below, you will find a quick primer on what the law is and how your business can take all necessary steps to ensure eventual compliance with it.

Pre-existing Accommodations

Before delving into what the PWFA consists of and how employers can best prepare for it, it is worth looking at the patchwork of laws that currently exist to protect the rights of pregnant women in the workplace.

The two most important laws in this respect are the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act). The former protects workers who have pregnancy-related disabilities; the latter makes it so that pregnancy discrimination is considered a form of sex discrimination under the law.

Also important are the Family and Medical Leave Act — which grants pregnant workers twelve weeks of unpaid maternity leave during pregnancy or after giving birth — and the PUMP for Nursing Mothers Act, which ensures that employees are granted time and an adequate location for pumping breast milk.

All of these laws are important and have spared millions of pregnant women and new mothers from experiencing undue discrimination in the workplace. Still, none of them actually required employers to make significant accommodations for pregnant women when it came to the actual performance of their jobs. That is why the PWFA represents such a significant advancement — it is poised to change all of that.

The PWFA — What It Is and What It Covers

To quote Congress' own website, the PWFA "prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by a pregnancy, childbirth, or related medical conditions." It guarantees workers the right to "reasonable work accommodations" during the term of their pregnancy and in the months afterward.

Its remit is wide, covering not just full-time employees, but also part-time, temporary and seasonal workers. In addition to government employees, the law also covers any private company with more than fifteen employees.

What the PWFA will look like in action is of course highly individualized, and will depend on close collaboration between the company and the affected worker. Possible accommodations under the new law might include additional chairs or stools for workers physically unable to stand for long periods; break time to access medication for nausea or other pregnancy-related ailments; adjustments to working hours to accommodate physical conditions; more frequent breaks; limits on heavy lifting; allowing pregnant workers to telecommute; and even exceptions to certain "clean desk" policies which prevent workers from keeping personal items on their desks (most often found in industries like hospitality).

Of course, the accommodations that employers will be expected to make for workers under the PWFA are not unrestricted — if the requested accommodations impose an "undue hardship" on the employer, they will not be required to comply with them.

How HR Departments Should Prepare for the PWFA

In accommodating pregnant or postpartum workers — as in every other aspect of HR — clear communication is key.

That means, for one thing, ensuring employees have accurate information about their rights from the very start of the process, in order to prevent confusion down the line. It also means working out accommodations in detail throughout the pregnancy and postpartum period through what the law describes as an "interactive process."

By entering into this conversation in good faith and taking every reasonable step to ensure the relevant accommodations are met, employers can make a positive impact on the health and well-being of their workers while staying on the right side of the law.

Meanwhile, employers should stay vigilantly attuned to the various state and local laws that govern pregnancy, nursing and leave, ideally employing an HR compliance calendar to ensure that nothing is missed. The use of a DEI dashboard can also pay massive dividends here, allowing employers to gain real-time insight into employee satisfaction and take quick, decisive action when needed.

Finally, employers should strive to look at the PWFA not as a comprehensive solution to workplace discrimination but as a starting point. For too long now, pregnancy has held women back in the workplace and needlessly stunted otherwise promising careers. Federal law still does not provide PTO for childbirth, but that does not mean employers can not work to institute more flexible accommodations that go above and beyond the letter of the law.