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Employer Q & A About New Pregnant Workers Fairness Act

Pregnant EmployeeThe Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. It was passed by the U.S. Congress in December 2022 with bipartisan support due to a growing awareness of the country’s worsening maternal health outcomes and lack of support for pregnant working mothers.

What is the Pregnant Workers Fairness Act?

The PWFA requires employers to offer reasonable accommodations to a qualified employee’s known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. Although the federal government has not yet adopted regulations interpreting the PWFA, we anticipate that medical conditions after pregnancy may include, but are not limited to, recovery from childbirth and postpartum depression. Related medical conditions before pregnancy may include, among other things, fertility treatment.  

Which employers must comply with the PWFA?

Public and private employers with 15 or more employees engaged in an industry affecting commerce in each of 20 or more calendar weeks in the current or preceding calendar year must comply with the PWFA. Count part-time and temporary employees if they are on the payroll.

Who is a “qualified employee”?

In order to enjoy the protection of the PWFA, an employee must be “qualified.” The term “qualified” means that the employee (or job applicant) can perform the essential functions of her job either with or without an accommodation. Significantly, an employee will still be considered qualified if she can’t perform the essential functions of her job for a temporary period. It is currently unclear what “temporary” means.

What is an “undue hardship” under the PWFA?

The PWFA uses the same definition of “undue hardship” as the federal Americans with Disabilities Act, which defines the term as significant difficulty or expense. What constitutes an undue hardship for an employer is very fact specific and depends on several factors.  An undue hardship analysis focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Foster Swift’s employment attorneys can help you determine if an accommodation imposes an undue hardship on your business.   

What do I do if a qualified employee requests a reasonable accommodation under the PWFA?

It is critical that employers engage in an interactive process with the employee to determine if the employer can provide a reasonable accommodation. The purpose of the interactive process is to ask the employee relevant questions that will enable the employer to make an informed decision about the request. Employers cannot require an employee to accept an accommodation without first discussing it with them in an interactive process.

What are some examples of reasonable accommodations?

Whether something qualifies as a reasonable accommodation depends on the particular circumstances of the situation, but might include:

  • Temporary job reassignment
  • Seating or modified seating
  • Closer parking access
  • Additional break time to rest, eat or use restroom
  • Modified, flexible hours
  • Leave to recover from childbirth
  • Appropriately sized uniforms/equipment

What if an employer doesn’t comply with the PWFA?

Penalties for employers who violate the PWFA vary depending on the infraction. However, possible penalties for non-compliance include:

  • Payment of lost wages and benefits
  • Compensatory damages (intended to compensate the employee for future lost wages and benefits)
  • Punitive damages (intended to punish the employer for its willful or malicious conduct)
  • Injunctive relief (a court order requiring the employer to stop violating the law)
  • Other remedies (including attorneys’ fees and costs)

Is there additional guidance to help employers understand the law?

The Equal Employment Opportunity Commission (EEOC) published proposed regulations for public comment regarding how to interpret the PWFA on August 11, 2023. We anticipate final regulations by the end of the year. The EEOC published some additional guidance at https://www.eeoc.gov/statutes/pregnant-workers-fairness-act.

What should employers be doing now in response to the new law?

Train managers on the PWFA. Make sure they understand their obligations under the new law. Update your policy for handling accommodation requests. The policy should clearly state that you are committed to providing reasonable accommodations for pregnant employees.

If you have any questions about the PWFA, meeting your legal obligation to provide reasonable accommodations for pregnant workers or other issues related to pregnant employees in the workplace, please contact Karl Butterer or another member of Foster Swift’s Employer Services Practice Group.

Categories: Alerts and Updates, Employee Benefits, Employment, Labor Relations, Legislative Updates


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