Pregnant Workers Fairness Act: What You Need to Know

I n the final days of 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. The law was backed by a surprising bipartisan coalition that included workers’ rights groups, the Society for Human Resources Management, U.S. Chamber of Commerce, ACLU and U.S. Conference of Catholic Bishops. Talk about strange bedfellows. But here we are, and here’s what you need to know to help your clients—employers or employees— understand the law:

What is PWFA? A new law requiring covered employers to make “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical condition of a qualified employee” unless the employer can demonstrate undue hardship. The statute is modeled largely on the Americans with Disabilities Act, including the ADA’s interactive process. It applies to private and public sector (Congress, federal agencies, state, local and municipal agencies) employers with at least 15 employees, employment agencies, and labor organizations. It is enforced in the same manner as other federal employment discrimination laws, so claims against private employers are initiated by filing a charge with the Equal Employment Opportunity Commission and can lead to court action and damages.

Why do employees need pregnancy accommodation? Most pregnant people will need at least some changes at work, whether due to normal pregnancy symptoms (morning sickness, bladder control issues, increased thirst, growing belly) or more serious complications (gestational diabetes, preeclampsia). Employees in certain jobs may require accommodation to avoid hazards, like exposure to toxics or the risk of falls. Employees may likewise need accommodation to meet their health needs associated with childbirth, infertility, pregnancy termination and loss, and lactation—all of which are covered by PWFA. A key purpose of the law is to keep pregnant employees working for as long as they want to and are able to, which benefits them and their employers. What types of accommodations must be made? It ranges widely, depending on the employee’s needs and job duties. Examples include flexible hours to attend prenatal care appointments, a chair to sit on while checking out customers at the cash register, a temporary transfer to a position that is safer during pregnancy, work from home to avoid exposure to COVID-19, and assistance with lifting. For more, see the Center for WorkLife Law’s guide,

Can employees take leave under PWFA? Leave can be a reasonable accommodation, such as when an employee needs to recover from pregnancy loss or childbirth. However, an employer cannot require an employee to take leave if they want to continue working and another reasonable accommodation is available

Must employers accommodate abortion? Yes. An employee who requests accommodation for abortion healthcare is seeking accommodation for a limitation “related to, affected by, or arising out of pregnancy,” as required by PWFA. For more information about abortion and work, visit WorkLife Law’s FAQs .

My client is pregnant. How does she request an accommodation? The pregnant employee does not have to use any magic words. They can trigger the employer’s legal obligation through a communication that demonstrates that they need an accommodation for a pregnancy-related limitation. For example, “I’m pregnant and having bad morning sickness, so I’m having trouble getting to the office on time” is sufficient to put the employer on notice. The employee can request a specific accommodation, such as a later arrival time, but they do not have to.

How must the employer respond? If the requested accommodation is clear and easy to provide, the employer should just provide it. If the request is unclear or the accommodation seems unreasonable or impossible, the employer and employee should engage in an interactive process to identify an accommodation that will meet the employee’s needs. It can be an informal conversation with both sides discussing various options, or it can be a more formal process. The one thing it shouldn’t be is lengthy, unless the employer is providing an interim accommodation. An employer that does not provide an accommodation in a reasonable period of time leaves themself open to claims that it has denied an accommodation and/or has interfered with the employee’s exercise of its PWFA rights.

What if the employee asks for changes to their essential job duties? The employer should consider making them. PWFA protects “qualified employees,” which means an employee or job applicant who can perform the essential functions of the job with or without accommodation. This language is drawn from the ADA, but unlike the ADA, a worker who cannot perform the essential job functions may still be entitled to accommodation under PWFA, so long as the inability is temporary and can be reasonably accommodated, and the worker will be able to perform the essential functions in the near future.

What if the employer can’t grant the employee’s accommodation request? Although an employer should consider an employee’s requested accommodation, the employee is not entitled to their preferred accommodation. The employer can offer alternatives that are as effective at protecting the employee’s health and safety and that the employer can provide without undue hardship.

We are in a state that has its own PWFA. Do we have to comply with both? PWFA does not limit state or local laws that provide greater protection. Some state pregnancy accommodation laws apply to smaller employers, have longer statutes of limitation, require certain accommodation requests to be granted automatically, and don’t have damages caps.

What about the Pregnancy Discrimination Act? Most employers and employees will now rely on PWFA to understand accommodation obligations, but the PDA and Americans with Disabilities Act continue to play important roles in preventing and remedying discrimination. To learn more, check out the PWFA Explainer from the Center for WorkLife Law and the ACLU.