The New Pregnant Workers Fairness Act Expands Federal Protection to Working Moms
Over the last ten years, 57% of women aged 16 and older worked outside the home. Of these working women, 72 percent will become pregnant while employed at some time in their lives.[1] And yet, no federal law guaranteed pregnant workers the right to reasonable accommodations in the workplace (causing 23 percent of working mothers to consider leaving their jobs) until today.
The rights of working mothers changed on June 27, 2023, when the Pregnant Workers Fairness Act (PWFA) goes into effect. The PWFA allows pregnant and postpartum workers to request accommodations to make it easier to do their jobs. These are entirely new federal rights for workers which protect millions of working moms and create stronger enforcement methods against offending employers.
It is important for employers to understand the PWFA because this Act changes the employment legal landscape and increases litigation exposure to employers. The Equal Employment Opportunity Commission (EEOC) started accepting charges of discrimination under the PWFA on June 27, 2023. For the PWFA to apply, the offending employer must have 15 or more employees and the violation must have happened on or after June 27, 2023. Employees protected by the PWFA are (a) those who can perform the essential functions of the role with or without reasonable accommodation, or (b) those whose inability to perform an essential function of the role is temporary and can be reasonably accommodated.[2]
Prior to the PWFA, employers were only required to accommodate pregnant employees’ medical restrictions to the extent the employees were rendered “disabled” within the meaning of the Americans with Disabilities Act (the ADA). The PWFA, however, expands protections to pregnant workers beyond the scope of disability alone. Now, covered employers are required to make reasonable accommodations for pregnancy-related medical conditions even if their conditions do not rise to the level of a disability, as long as the accommodations do not impose an undue hardship on the employer.[3] Pregnant workers must be provided with reasonable accommodations for temporary inabilities to perform the essential functions of the job.[4] These new protections allow mothers to keep their jobs while dealing with temporary conditions related to pregnancy.
Under this new Act, workers can request accommodations to address pregnancy or postpartum related conditions only. These conditions may include back pain, morning sickness, gestational diabetes, pregnancy loss, fertility treatments, and more. Possible accommodations protected under this Act include but are not limited to telework, modified duties, a change in location, a closer parking space, additional break time, additional time for projects, lifting restrictions, additional time off for medical care, and/or appropriately sized uniforms. Employers may not deny reasonable accommodations to applicants or employees who have known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship (significant difficulty or expense) on business operations.
It is also a PWFA violation for a covered employer to interfere with any individual’s rights under the PWFA, such as:
- Denying employment opportunities to a qualified pregnant or postpartum employee or applicant based on their need (or perceived need) for a reasonable accommodation;
- Requiring an employee to take unpaid leave where there exists opportunity for a reasonable accommodation that would let the employee keep working instead;[5] or
- Retaliating against a worker for reporting or opposing unlawful discrimination under the PWFA.
Although the PWFA only addresses accommodation, existing laws already make it illegal to discriminate against workers on the basis of gender, age, pregnancy, childbirth, or related medical conditions. After June 27, 2023, however, the EEOC is beginning to analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA in addition to other anti-discrimination laws which are already in effect.
As the PWFA takes effect, it is important for employers to ensure their business practices are up to date with the new law. Employers should consider updating personnel policies to ensure PWFA compliance, develop a clear understanding of the “essential functions” of jobs and what parts of a role can and cannot be temporarily amended to allow working moms to stay on payroll and be prepared to fairly evaluate new accommodation requests for working moms in lieu of leave—such as light duty or remote work.
As more women continue to enter the workforce, statutory protections for working mothers are expanding. Federal laws which apply to working mothers include the following:
1. Pregnant Workers Fairness Act (PWFA)
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Coverage
The PWFA protects employees and applicants of “covered employers” with known limitations related to pregnancy, childbirth, or related medical conditions. ”Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
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Protections afforded to pregnant and postpartum workers
Workers can request accommodations to address pregnancy itself or postpartum-related conditions. Workers are also protected from retaliation for seeking accommodation or supporting an employee in seeking the same.
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Impact on employers
An employer must engage in good faith efforts to identify and make reasonable accommodations to a qualified worker’s known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will create an undue hardship on the employer. The employer may be required to agree to an accommodation that would temporarily alter the essential functions of the job.
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Enforcing Body
EEOC
2. Americans with Disabilities Act (ADA)
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Coverage
“Qualified individuals with disabilities” are those who with or without reasonable accommodation, can perform the essential functions of the job in question despite having a physical or mental impairment that substantially limits one or more major life activities, having a record of such an impairment; or being regarded as having such an impairment. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
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Protections afforded to pregnant and postpartum workers
Workers can request accommodations to address disabilities resulting from pregnancy which cause “a substantial limitation of a major life activity.” Pregnancy itself is not a disability under the ADA. Workers are also protected from retaliation for seeking accommodation or supporting an employee in seeking the same, and from discrimination on the basis of an actual or perceived disability or association with a person with an actual or perceived disability.
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Impact on employers
An employer may have to provide a reasonable accommodation for women affected disabilities resulting from pregnancy subject to the same conditions as any other temporarily disabled employee who are similar in their ability or inability to work. The employer is not required to agree to an accommodation that would alter the essential functions of the job.
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Enforcing Body
EEOC
3. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA)
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Coverage
The PDA protects women who are pregnant or affected by pregnancy-related conditions. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
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Protections afforded to pregnant and postpartum workers
Prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. Employees are also protected by the PDA from discrimination on the basis of the employee having an abortion, not having an abortion, or contemplating having an abortion.
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Impact on employers
Employers cannot discriminate based on sex, pregnancy, or other protected categories when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment. Discrimination is prohibited based on current pregnancy, past pregnancy, potential or intended pregnancy (whether perceived or actual), and medical conditions related to pregnancy or childbirth.
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Enforcing Body
EEOC
4. Fair Labor Standards Act (FLSA), as amended by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
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Coverage
All employees of certain enterprises whose annual gross volume of business is $500,000 or more and having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person, except for airline flight crew members.
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Protections afforded to pregnant and postpartum workers
Expands existing employer obligations under the FLSA to include an obligation for covered employers to provide employees the right to break time and private space at work to express breast milk for their nursing child for one year after the child’s birth.
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Impact on employers
Covered employers may not refuse to provide breaks and a private location (other than a bathroom) for nursing employees to express breast milk at work, absent undue hardship. The FLSA also forbids employers from retaliating against or punishing employees who raise concerns about their right to pump at work, or those who cooperated in an investigation regarding these protections.
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Enforcing Body
US Department of Labor
5. Family and Medical Leave Act (FMLA)
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Coverage
Employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and work at a location where the employer has at least 50 employees within 75 miles. “Covered employers” include private and public sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or the previous calendar year, Congress, Federal agencies, employment agencies, and labor organizations.
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Protections afforded to pregnant and postpartum workers
New parents (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid, or paid if the employee has earned or accrued it) that may be used for care of the new child. Employees who use FMLA leave then have the right to go back to work at their same job or to an equivalent job that has the same pay, benefits, and other terms and conditions of employment at the end of their FMLA leave.
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Impact on employers
An employer cannot threaten, discriminate against, punish, suspend, or fire an employee because they requested or used FMLA leave. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.
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Enforcing Body
US Department of Labor
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
[1] US Census Bureau, Maternity Leave and Employment Patterns: 1961-2008, 2011
[2] H.R. 2617-1626, 117th Cong. § 102(6).
[3] Pregnant Workers Fairness Act, H.R. 2617-1626, 117th Cong. § 103(1) (signed into law December 29, 2022).
[4] H.R. 2617-1626, 117th Cong. § 102(6).
[5] H.R. 2617-1626, 117th Cong. § 103(4).
