Five baby steps to Pregnant Workers Fairness Act compliance

January 19, 2024

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Now is the time to familiarize yourself with the Pregnant Workers Fairness Act (PWFA), new legislation that became effective in in June 2023 to expand rights and protections for pregnant and postpartum employees in the workplace.

With 72% of working women likely to become pregnant while employed and 23% considering leaving their jobs due to lack of reasonable accommodations or fear of discrimination, it's imperative for you and your organization to understand the PWFA and its implications.1

Here are five actionable steps to help ensure compliance with the PWFA:

1. Familiarize yourself with the PWFA

Take the time to review the PWFA statute, pending regulations and EEOC resources. Pay close attention to key PWFA definitions defined in the statue such as “known limitations,” "related medical conditions" and "undue hardship." The PWFA only applies to employees with known limitations related to pregnancy, childbirth or related medical conditions and requires providing “reasonable accommodations” to perform the essential functions of their job.

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Important note: The PWFA bridges the gap between the PDA and ADA by requiring reasonable accommodations regardless of if the pregnancy, childbirth or related medical condition rises to the level of a disability under the ADA.

2. Consider the intersection of PWFA, PDA, ADA and FMLA

When addressing "reasonable accommodations" requests or inquiries related to the PWFA, be mindful of the potential overlap with relevant federal, state or local laws. Over 30 states have their own laws providing accommodations for pregnant workers. The PWFA does not replace any existing laws.

Consider the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) as they may provide greater protection or have different requirements. In some cases, the PWFA provides broader rights to pregnant employees or those affected by pregnancy (through childbirth and related medical conditions) than the ADA. The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions, but unlike these other laws does not provide an explicit right to leave or a reasonable accommodation.

Furthermore, if a reasonable accommodation exists that does not impose an "undue hardship" on the employer, under the PWFA, qualified employees cannot be compelled to take leave, regardless of whether it is paid or unpaid.

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Unlike the FMLA, there is no tenure and hours worked requirement under the PWFA.

3. Promote awareness of the PWFA within your organization

Take a pulse check on your compliance, and share this article with your team, supervisors and HR professionals to promote awareness and understanding of the PWFA. Here are some actions you can take to improve information dissemination within your organization:

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    Host an open forum to ensure all employees are aware of the PWFA.
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    Designate an HR professional as the "PWFA Subject Matter Expert" to provide information and answer questions.
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    Update internal policy materials, display information in accessible areas and share digital resources for those seeking information.

4. Review your internal process and existing forms

As of June 27, 2023, employees can file a PWFA violation complaint with the EEOC against your business and establishing an “interactive process” for streamlined PWFA accommodation requests is essential for compliance. There are no specific key phrases or words that must be used to make a request, so having a defined protocol in place can help identify when a “known limitation” exists, identify potential accommodations and be beneficial in the event of any disputes or legal claims.

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Important note: The request for accommodations does not necessarily need to be in written form and can be communicated verbally.

5. Be proactive in your accommodations planning and requests

You and your employee must discuss the accommodations together, especially considering that needs and accommodation requests may vary, from morning sickness hindering start times to additional breaks and closer parking.

By following the above steps, you can ensure that you and your team are adhering to PWFA guidelines and are prepared to provide the necessary accommodations for pregnant workers.

Please note, this information is intended to be educational only and was accurate upon date of publishing.