New Federal Law Ensures Pregnant Employees Can Get Support at Work

In December 2022, civil rights organizations, women’s rights advocates, labor unions, and also (perhaps, to some, surprisingly) the U.S. Chamber of Commerce and other leading business organizations celebrated the passage of a major new federal civil rights statute: the Pregnant Workers Fairness Act (PWFA). The PWFA requires that employers provide “reasonable accommodations” for workers affected by a pregnancy, childbirth, or related medical conditions unless doing so would be an “undue hardship.” This standard, borrowed from federal disability law, will help ensure that pregnant workers can receive the support they need at work. It makes good on a simple promise: No one should have to choose between their job and a healthy pregnancy.

Prior Law Frequently Denied Pregnant Workers Accommodations

Each year, about 250,000 pregnant workers make requests for workplace accommodations that are denied. Many simply ask for minor changes to work rules, such as being allowed to sit on a stool, carry a water bottle, have snacks at a workstation, or take extra restroom breaks. Some request to be excused from lifting heavy objects or seek to reduce their exposure to potentially harmful chemicals. Others ask for time off to attend prenatal appointments or for childbirth and postpartum recovery.

In many white-collar and professional workplaces, employees can make such adjustments to their work environment or work time without seeking formal approval, or even conceptualizing the change as an “accommodation.” By contrast, companies often tightly regulate all aspects of low-wage blue-collar, pink-collar, and service work. Thus, even small modifications may require a formal accommodation request.

Prior to the enactment of the PWFA, federal sex discrimination and federal disability laws sometimes required such accommodations, but the standards under these laws were confusing to both employers and workers. In the absence of clear federal guidelines, about half of the states had passed laws that generally required reasonable accommodations for pregnancy, but each was a little different from the next. The result was widespread confusion—and many pregnant workers were fired, forced into unpaid leave, or compelled to quit because they could not get the support they needed.

When pregnant workers lose their jobs, they and their families suffer. More than 40 percent of mothers are the primary or sole breadwinners for their families, and an additional quarter of mothers provide 25 to 49 percent of household income. Pregnant workers who were fired or quit often also lost their employer-provided health insurance, which could mean they would need to pay tens of thousands of dollars in medical expenses associated with childbirth. 

PWFA Provides Essential Support

PWFA makes it unlawful for employers with at least 15 employees to deny “reasonable accommodations” for “known limitations” of pregnancy, childbirth, and related medical conditions unless doing so would be an “undue hardship.” This standard largely parallels the Americans with Disabilities Act’s (ADA’s) mandate to provide such accommodations for individuals with disabilities. Under this new rule, workers should be able to receive support to help them work safely through pregnancy. This could include access to seating, food or water, restrooms, appropriately sized uniforms and safety apparel, closer parking, schedule modifications, or relief from job requirements that could cause harm.

The PWFA also borrows from the ADA a requirement that the employee must be “qualified,” which is defined as being able (with or without an accommodation) to perform the “essential functions” of the job. However, the PWFA specifies that a worker can be deemed “qualified” even if she is unable to perform some key functions for a temporary period. This is an important difference from the ADA, which does not include analogous language, and it reflects the reality that most limitations related to pregnancy and childbirth are short-term in nature. The PWFA also states explicitly that a worker cannot be forced to take leave if there is another accommodation that can meet her needs. This is likewise essential, as it helps ensure that a pregnant worker can keep earning a paycheck through the pregnancy, saving any available paid or unpaid leave for recovery from childbirth and care for the newborn.

The PWFA requires accommodations for “pregnancy, childbirth, and related medical conditions.” This language is borrowed from a separate federal law, the Pregnancy Discrimination Act (PDA). In recent years, courts have consistently interpreted this language to cover immediate post-partum and lactation-related needs. Thus, under the PWFA, a worker could ask for time off for childbirth and recovery. This can be extremely important for the significant share of the workforce who do not qualify for leave under the federal Family and Medical Leave Act or a state paid or unpaid leave law.

For lactation-related needs, the PWFA will work together with another new federal law, also enacted in December 2022—the PUMP for Nursing Mothers Act. The PUMP Act generally requires employers to provide reasonable break time for workers to express breastmilk and a private, non-bathroom space in which to do so. Workers could use the PWFA to request other accommodations to facilitate pumping or breastfeeding, such as a request to be excused from long-distance travel.

The “related medical conditions” language will likely be interpreted to apply to a range of other conditions connected to reproduction. The federal Equal Employment Opportunity Commission (EEOC), which is charged with promulgating regulations to implement the PWFA, published its proposed rule in August 2023. The proposed rule indicates that the EEOC will interpret this language as including, among other things, infertility treatments, miscarriage, abortion, menstruation, and conditions such as anxiety or depression that may be caused by or heightened by pregnancy or childbirth. Importantly, the PWFA’s language is gender neutral, so presumably it will apply to trans-men or nonbinary persons who may be pregnant or experience these other conditions.

As under the ADA, once a worker makes clear to a supervisor or whoever in her workplace handles human resources functions that she has needs related to pregnancy or one of these other conditions, the employer and employee are typically expected to engage in an “interactive process” to explore potential accommodations. Ideally, the parties work together constructively and they find a workable solution quickly. In its proposed rule, the EEOC suggests that requests for extra restroom breaks and modifications in policies regarding sitting, standing, or access to food and beverages should virtually always be granted and therefore are unlikely to require much discussion in an interactive process. More generally, the interactive process is intended to help a worker get the support she needs without having to file an administrative complaint or lawsuit. Studies of states that have enacted their own PWFA law have generally found that litigation related to pregnancy discrimination and accommodation requests went down rather than up after the law’s implementation.