Effective June 27, 2023, the Pregnant Worker’s Fairness Act (PWFA) mandates that Impacted Employers (i.e., those with fifteen or more employees) must, upon employee request, provide reasonable accommodations to the known limitations related to the pregnancy, childbirth, or associated medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship. Though the PWFA does not provide a list of possible limitations, it provides that such limitations include physical or mental conditions communicated to the employer.
The PWFA applies only to accommodations and the obligations under the PWFA do not replace federal, state, or local laws that are more protective of employees affected by pregnancy, childbirth, or related medical conditions.
In addition, the PWFA provides that it is unlawful to:
- Require a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
- Deny employment opportunities based on the need of the employer to make such reasonable accommodations to a qualified employee;
- Require qualified 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.
Example accommodations for pregnant employees
While not binding on employers, the House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations, including:
- Closer parking;
- Flexible work schedules; /li>
- Custom uniforms, safety apparel, and/or PPE;
- The ability to sit or drink water;
- Additional break time (e.g., restroom, meal, and rest breaks, lactation breaks);
- Leave or unpaid time-off for pregnancy-related conditions;
- Preference for light duty activity or assignments; and
- Workspaces free and/or safe distances from exposure to compounds not safe for pregnancy.
Revised labor law postings
Equal Employment Opportunity Commission (EEOC) has issued a revised “Know Your Rights: Discrimination in the Workplace is Illegal” poster that Impacted Employers must post by June 27, 2023.
Undue Hardship Defense
Much like the reasonable accommodation requirements under the Americans with Disability Act (ADA), the PWFA provides an exception where the accommodation would cause an undue hardship. Undue hardships include accommodations that result in significant difficulty or expense for the employer. Again, like the ADA, the likelihood of success under an “undue hardship” defense is likely to vary widely based upon the fact-intensive details of each case.
Anticipated EEOC regulations and penalties
The deadline for the EEOC to publish its interpreting guidance (i.e., regulations) is June 27, 2025. Employers should tread carefully until the regulations become final.
Alleged victims of PWFA violations can file charges against their employer with the EEOC and bring civil suits for lost wages, other compensatory damages, interest, punitive damages, costs of suit, and reasonable attorneys’ fees and experts’ fees.
Nixon Peabody attorneys have extensive experience advising employers on how to meet employee accommodation requirements, as well as a deep bench of qualified attorneys who defend against such claims. If you have questions about the accommodations that your employees may be entitled to, or other employment policies and practices, please contact the author(s) of this article or your local Nixon Peabody office.