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The Pregnant Workers Fairness Act (“PWFA” or “the Act”) was signed into law on December 29, 2022.[1] The PWFA went into effect on June 27, 2023, and the Equal Employment Opportunity Commission (“EEOC”)’s final regulation related to the Act went into effect on June 18, 2024.[2] This blog post will discuss the PWFA and will provide guidance regarding this important piece of legislation.

As noted by the EEOC, the PWFA “requires a covered employer to provide a ‘reasonable accommodation’ to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an ‘undue hardship.’”[3] The PWFA applies only to reasonable accommodation requests for pregnant workers, as there are other laws that protect against discrimination based on pregnancy, childbirth, and related medical conditions, such as Title VII, the Americans with Disabilities Act (“ADA”), the PUMP Act, and the Family and Medical Leave Act.[4] The PWFA does not override federal, state, or local laws that are more protective of workers.[5]  The EEOC began accepting charges alleging violations of the PWFA starting on June 27, 2023, with the final regulations coming approximately a year later.[6]

As noted by the EEOC, the agency “will continue to accept and process charges involving a lack of accommodation regarding pregnancy, childbirth, or related medical conditions under Title VII and/or the ADA as well as under the PWFA.”[7] The PWFA, like Title VII and the ADA, applies to “private employers and public sector employers (state and local governments) that have 15 or more employees. It also applies to Congress and Federal agencies, and to employment agencies and labor organizations.”[8]

Under the PWFA, a “qualified employee or applicant” is defined as an employee or applicant who can perform the essential functions (i.e., fundamental duties) of a role without the reasonable accommodation.[9] An employee can be considered a qualified employees even if they cannot perform the essential functions if (1) the inability is temporary; (2) the employee could perform the essential functions “in the near future”; and (3) the inability to perform the essential functions can be reasonably accommodated.[10] Regarding “known limitation,” that means the “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” had been communicated to the employer by the employee or the employee’s representative (or applicant or applicant’s representative).[11] “Pregnancy, childbirth, or related conditions” includes, among other things, “uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.”[12]

Turning to prohibited conduct, the PWFA provides that employers may not:

• “Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
• Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
• Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.”[13]

The EEOC has clarified that leave may be a reasonable request under the PWFA but that an employer does not have to provide leave if it would cause an undue hardship.[14] An “undue hardship” is defined as something that would cause significant difficulty or expense for the employer.[15] Employees do not have to use specific words to request an accommodation and begin the interactive process with the employer.[16] As the pregnancy progresses, the employee may need different accommodations, and employers would work with the employee to ensure reasonable accommodations are provided.[17]

Regarding employers obtaining information from an employee’s healthcare provider, the EEOC has provided helpful guidance.  As the EEOC has noted, “In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy.”[18]  The EEOC has further provided, “Although an employer is not required to seek medical information from an employee’s health care provider, the employer may seek information from the employee’s health care provider under limited circumstances.”[19] If an employer does obtain medical information from an employee, the employer must keep the information confidential.[20]

By way of example, imagine that employee Lorelai works at The Independence Inn, which has over fifteen employees. Lorelai, who is six months pregnant (a fact known to the owner of the Inn, Mia), requests that she be permitted to attend medical appointments, a reasonable accommodation that would not cause hardship for the Inn. Mia must engage in an interactive process with Lorelai to accommodate her. Failure to do so would lead to Lorelai having a good claim under the PWFA (and, perhaps, would ultimately lead to Lorelai getting a settlement or judgment from The Independence Inn).  The damages available under the PWFA are the same as under Title VII (they include injunctive relief, compensatory damages, the possibility of punitive damages, and attorneys’ fees).[21]

The PWFA provides needed protections for employees with limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. We will monitor how the courts interpret this important piece of legislation and will provide updates as needed. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Regulations to Implement the Pregnant Workers Fairness Act, Federal Register, available at https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act (last visited Jan. 30, 2025).

[2] What You Should Know About the Pregnant Workers Fairness Act, Equal Employment Opportunity Commission, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act (last visited Jan. 30, 2025).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See Summar of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA), Equal Employment Opportunity Commission, available at https://www.eeoc.gov/summary-key-provisions-eeocs-final-rule-implement-pregnant-workers-fairness-act-pwfa (last visited Jan. 30, 2025).

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