As of June 27, 2023, the new federal Pregnant Workers Fairness Act (“PWFA”) took effect, covering both federal government and private employers with 15 or more employees.
The law, which passed in December and was signed by President Biden, requires that private employers provide their pregnant employees workplace accommodations for pregnancy-related medical conditions, everything from pregnancy to childbirth to postpartum recovery.
The new law builds upon and enhances the protections of the federal 1978 Pregnancy Discrimination Act, signed into law by President Jimmy Carter, which amended Title VII of the anti-discrimination 1964 Civil Rights Act. The PWFA clarifies the 1978 law and amends the Americans With Disabilities Act of 1990.
Congress stated that the purpose of the PWFA is “To eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”
The new law not only clarifies the role employers play, but offers an expansive set of protections that includes accommodations such as unpaid time off from work after childbirth for recovery, effectively creating access to unpaid leave for workers who don’t qualify for federal leave.
The Pregnant Workers Fairness Act requires employers to offer “reasonable accommodations” to employees in the workplace for medical conditions related to the entire period from pregnancy to postpartum recovery. That includes accommodations for fertility treatments, morning sickness — including hyperemesis, an extremely severe morning sickness and nausea condition — lactation, complications, gestational diabetes, pregnancy loss, postpartum depression, and conditions including mastitis, an infection of the breast tissue that typically occurs when breastfeeding. It includes time off to recover from childbirth, as well as time off to access abortion care.
The new law prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A “qualified employee” is an employee or job applicant who, with or without reasonable accommodation, can perform the essential functions of the job, with specified exceptions.
Specifically, the law declares that it is an unlawful employment practice for an employer to
- fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on the employer’s business operation;
- require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process of discussion between employer and employee;
- deny employment opportunities based on the need of the employer to make such reasonable accommodations to a qualified employee;
- require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
- take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal government agency tasked with enforcing the law. Workers can already file complaints (“charges”) with the EEOC if related to actions that took place June 27 or later. Lawsuits may be filed only after the EEOC processes the complaint.
The law will require individual employee accommodations as may be necessary in each case, such as giving a worker additional time to sit, rest, drink, eat, or use the bathroom. It could mean relaxing some policies to allow workers a stool to sit on, allow them to wear maternity clothing, or allow a water bottle in an area where it’s not typically allowed. Accommodations could also include time off for prenatal appointments, accommodating for morning sickness, or allowing remote work if available. These accommodations would be only for a temporary period of time.
For workers with jobs that require significant manual labor, transferring workers to light duty or temporarily transferring them to a less physically demanding job would also constitute an accommodation.
If a worker needs time off to recover from a vaginal delivery or a Cesarean section, they can invoke the Pregnant Workers Fairness Act to take unpaid time off. Their job would be protected during this time, so they could not be fired for taking the time. Under the Pregnant Workers Fairness Act, a worker would qualify for unpaid time off regardless of whether they’ve been at a job for a minimum of one year.
The time off would be for the duration of the recovery period. Many women have a first postpartum appointment around six weeks following childbirth, and for C-sections, the recovery can be even longer.
Employers who do not wish to provide the requested accommodation will need to prove that the accommodation would create “undue hardship,” meaning it would be too costly or burdensome on the business to provide it. That is going to be a difficult standard to meet because the accommodation is only temporary.
“I am honored to lead the EEOC as we enforce a new civil rights law. For workers and job applicants, the PWFA will help ensure economic security at a critical time in their lives,” said EEOC Chair Charlotte A. Burrows. “The EEOC stands ready to support employers as they carry out the PWFA’s directives and to support workers in receiving the accommodations they are entitled to under the PWFA.”
The EEOC has released new additional online educational resources, including tips for workers to request accommodations, a “Know Your Rights” video series, and a revised “Know Your Rights” poster required to be posted in most workplaces.
Separately, the federal Family and Medical Leave Act, which covers private employers with 50 or more employees, protects pregnant employees in Florida for up to twelve weeks in a 12-month period of job-protected, unpaid leave to an eligible employee for pregnancy-related reasons. If an employee suffers a physical disability due to pregnancy, employers must allow employees to take up to four months of pregnancy disability leave.
Also, the 2022 federal “PUMP” Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), broadens workplace protections for employees to express breast milk at work. This law, an amendment to the Fair Labor Standards Act of 1938, requires employers to provide a reasonable amount of break time and a clean, private space for lactating workers to express milk for up to one year following the birth of the employee’s child. The pumping space cannot be a bathroom.
