Last week, a new U.S. law took effect requiring fair accommodations for pregnant Americans. My ears perked up not only as an employee benefits enthusiast but because I’m about to welcome my second child next month and am on high alert for all things pregnancy-related! I was curious not only how the law would impact me and millions of other pregnant women across the country, but its impact on plan sponsors/employers and how they should prepare.

According to the National Partnership of Women & Families, 2.8 million pregnant women each year—70% of all pregnant women—worked during the year of their pregnancy.

On December 29, 2022, President Biden signed the PUMP for Nursing Mothers Act and Pregnant Workers Fairness Act (PWFA) into law. We’ll be focusing on the PWFA in this blog, which requires covered employers to provide reasonable accommodations to worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship (more on “undue hardship” later). The PWFA went into effect on June 27, 2023.

The PWFA applies only to accommodations and does not replace federal, state, or local laws that provide greater protections to workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.

Important Note for Plan Sponsors

The PWFA applies only to “covered employers” which is defined as private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.

The PWFA requires employers to provide reasonable accommodations to a worker’s known limitations, meaning that the employee has communicated with the employer, related to pregnancy, childbirth, or related medical conditions. Here are a few examples from the House Committee on Education and Labor Report on the PWFA of reasonable accommodations for consideration (note: “reasonable accommodations” are changes to the work environment or the way things are usually done at work).

• The ability to sit or drink water
• Closer parking
• Flexible hours
• Appropriately sized uniforms and safety apparel
• Additional break time to use the bathroom, eat, rest
• Leave or time off to recover from childbirth
  • According to the International Foundation’s Employee Benefits Survey, 43% of employers offer paid maternity leave above and beyond legal requirements.
• Employee excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations, which is a significant difficulty or expense for the employer.

According to a report by the American College of Obstetricians and Gynecologists, because there wasn’t a law requiring accommodations for pregnant workers before the PWFA, medical professionals were instrumental in writing notes that allowed pregnant employees to obtain reasonable accommodations.

How Employers Can Prepare to Talk to Employees About This

How should employers prepare to receive requests under PWFA? The EEOC provides the following recommendations:

• Employers can expect a worker to explain that because of a physical or mental condition related to their pregnancy, childbirth or related medical condition, it’s harder for them to perform their job, and they need a change.
• Expect to hear what barriers the employee is facing and hear ideas they may have on what could help them do their job.
• Employers would proceed with the “interactive process” that has long been used under the ADA (work together to come up with accommodations).
• Note, PWFA does not require employees to say any “magic words” or have a doctor’s note, per the National Women’s Law Center.

Other Federal Laws That May Apply to Pregnant Workers:  

• 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
  • 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 [More on The International Foundation’s FMLA e-learning course if you’re looking for a tune-up!]
  
• 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. [Related: Supporting Working Parents blog from earlier this year]

Next up, EEOC is required to issue regulations to carry out PWFA. The EEOC will issue a proposed version of the PWFA regulations so the public can give their input and offer comments before the regulations become final. International Foundation members will be alerted of all updates through Today’s Headlines so keep an eye out for that.

More helpful info from the U.S. Equal Employment Opportunity Commission can be found here.