The 2023 Pregnant Workers Fairness Act (PWFA)

is a new law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.

The only exception is if the accommodation would cause the employer significant difficulty or expense, which is known as "undue hardship." Let's get into it!

Just looking for the bottom line on changes you have to make to be in compliance? Skip Ahead.

Now, it's important to note that the PWFA specifically focuses on accommodations. There are already existing laws enforced by the EEOC that make it illegal to fire or discriminate against workers based on pregnancy, childbirth, or related medical conditions. But here's the thing: the PWFA doesn't replace other federal, state, or local laws that offer even more protection for pregnant workers. In fact, over 30 states and cities have their own laws providing accommodations for pregnant workers.

When does the PWFA go into effect, and will the public have input on any regulations?

It became effective on June 27, 2023. To ensure smooth implementation, the EEOC is required to issue regulations for the law. They will release a proposed version of the regulations, giving the public a chance to provide input and offer comments before they become final.

Is the EEOC accepting charges under the PWFA?

Now, if you're wondering whether the EEOC is already accepting charges under the PWFA, the answer is yes! Starting from June 27, 2023, they started accepting charges related to the PWFA. However, it's important to note that for the PWFA to apply, the situation complained about must have occurred on or after June 27, 2023. If a pregnant worker needs an accommodation before that date, they may still have rights under other federal or state laws.

Up until June 27, 2023, the EEOC will continue to accept and process charges related to pregnancy, childbirth, or related medical conditions under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). But after that date, they will analyze charges concerning accommodations for pregnant workers under the PWFA (if the violation occurred after June 27, 2023), as well as under the ADA and/or Title VII, if applicable.

Now, let's talk about who the PWFA protects. It applies to employees and job applicants of "covered employers." This includes private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

So, what exactly are these "reasonable accommodations" we keep talking about? They are changes made to the work environment or adjustments in how things are usually done at work. For example, allowing a pregnant worker to sit or have access to drinking water, providing closer parking, offering flexible hours, providing appropriately sized uniforms and safety apparel, allowing additional break time for bathroom, eating, and resting, granting leave for childbirth recovery, and excusing the worker from strenuous activities or exposure to unsafe compounds during pregnancy. Employers are required to provide these accommodations unless they would cause significant difficulty or expense, also known as "undue hardship."

The PWFA also prohibits covered employers from certain actions.

They cannot require an employee to accept an accommodation without discussing it with the worker, deny job opportunities based on the need for an accommodation, force an employee to take leave when other reasonable accommodations are available, retaliate against someone for reporting or opposing discrimination under the PWFA, or interfere with anyone's rights under the PWFA.

In addition to the PWFA, there are other federal laws that come into play when it comes to pregnant workers.

Other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:

Title VII (enforced by the EEOC), which: Protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and Requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
The ADA (enforced by the EEOC), which: Protects an employee from discrimination based on disability; and Requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer. While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons;
The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.

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The bottom line? What do you actually need to change to be in compliance with the 2023 Pregnant Workers Fairness Act?

Here's An Overview Of What You Need To KNOW.

The PWFA will prohibit employers from:

Requiring covered employees to “accept an accommodation other than any reasonable accommodation arrived at through the interactive process”
Denying “employment opportunities” to covered employees “based on the need” to “make reasonable accommodations”
Requiring covered employees “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided”
Taking “adverse action in terms, conditions, or privileges of employment against” covered employees requesting reasonable accommodations
Retaliating against employees for reporting or opposing unlawful discrimination under the PWFA.

What Qualifies as a Reasonable Accommodation?

"A modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job." The PFWA does not specify the types of reasonable accommodations that may be required. Instead, the act directs the EEOC to issue regulations to “carry out” its provisions that include “examples of reasonable accommodations.” Those regulations are to be issued within one year of the law’s enactment.

Here's An Overview Of What You Need To DO.

A) You'll need to update your employee handbook.

You'll need to update your employee handbook to ensure compliance with the 2023 Pregnant Workers Fairness Act.

Need expert help updating your handbook to make sure it meets all compliance requirements? (Even those outside the new PWFA laws?)

Book a personalized session to meet with us.

Check out the Done Desk resource "The 2023 Employee Handbook Updates Checklist by State"

B) You'll need to hang new poster(s) in your practice and make sure your Employees know about it.

New 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.

The law requires an employer to post a notice describing the Federal laws prohibiting job discrimination based on race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion, age (40 and older), equal pay, disability or genetic information (including family medical history or genetic tests or services), and retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding. Title VII of the Civil Rights Act of 1964 imposes a monetary penalty for covered employers who fail to post these notices. The penalty, currently $659, is adjusted annually for inflation as required by law.

These posters should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post the notice digitally on their web sites in a conspicuous location.

Printed notices should also be made available in an accessible format, as needed, to persons with disabilities that limit the ability to see or read. Notices can be recorded on an audio file, provided in an electronic format that can be utilized by screen-reading technology or read to applicants or employees with disabilities that limit seeing or reading ability.

Download the PWFA Healthcare Poster

TO DO:

Post this where all employees can see it.

Let them know it's there.

Track the date you posted it and retain evidence that

you announced it's presence to your employees.

Get signatures as proof they received it.

Download the EEOC "Know Your Rights" Handout

TO DO:

Post this where all employees can see it.

Let them know it's there.

Track the date you posted it and retain evidence that