The PWFA is expanding protections for pregnant workers — how employers can prepare

The U.S. is infamous for offering few federal protections and resources to pregnant workers, with paid maternity leave still up for debate. But the U.S. is making an effort to protect pregnant workers from losing their jobs — and employers need to be ready. 

Under the Pregnant Workers Fairness Act, or PWFA, signed into law by President Biden on Dec. 29, 2022,  employers with at least 15 employees will be required to provide reasonable accommodations to workers with known limitations due to pregnancy, childbirth or related medical conditions. Starting June 27, employees can file charges of discrimination to the Equal Employment Opportunity Commission if their employer fails to be compliant with the PWFA. 

If employers do not want to risk fines and lawsuits this summer and beyond, they should take extra care to review the PWFA and prepare the accommodations their employees need to be productive, but comfortable, underlines Seth Turner, co-founder and chief strategy officer at AbsenceSoft, a platform for leave and accommodation management. 

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"The EEOC is taking complaints on day one," says Turner. "There's no grace period built in, so employers have to be ready. It may seem challenging, but accommodations do allow employees to do their best work."

AbsenceSoft surveyed 600 HR leaders on their readiness for the PWFA, and found some concerning results: Despite half of the respondents admitting that 11% to 40% of their workforce is on maternity leave each year, 43% of HR leaders are either not at all or only somewhat familiar with the PWFA. Nearly half said their HR department is not at all prepared or just starting to prepare for the June 27 deadline. This didn't surprise Turner, since a lot of AbsenceSoft's clients had been caught off guard too. Turner notes that while many employers have been making efforts to expand parental leave, less attention has been paid to accommodations. 

"We've seen a large number of clients roll out progressive maternity leave policies, but now they need to think about how they can support the employee within the confines of the job," he says. "And there's a lot of the conditions protected under the PWFA that employers have never had to deal with before."

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Notably, 72% of HR leaders expect an increase in accommodation requests by pregnant employees, according to AbsenceSoft — but they aren't sure what those accommodations will look like. Turner points out that while the PWFA is somewhat modeled after the Americans with Disabilities Act, it holds some key differences.

"The ADA is pretty clear that you can't change the job's essential functions to make an accommodation," says Turner. "But the PWFA allows employers to reevaluate those essential functions in the light of pregnancy and make some changes."

For example, an employer might be required to reassign heavy-lifting duties to another worker during a portion of the employee's pregnancy or ensure the pregnant employee is not exposed to chemicals that are harmful to their health. This may mean making changes to the pregnant employee's daily responsibilities, but under the PWFA these are reasonable and required accommodations. 

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Other accommodations noted in the PWFA include giving the pregnant employee the ability to eat and drink when needed, have access to closer parking, have flexible hours and additional break time and receive appropriately-sized uniforms and safety apparel.

"Employers need to look at all the reasonable conditions outlined in the PWFA and take care of it," says Turner. "While similar to the ADA, the PWFA extends beyond what the ADA cares about."

Employers should be aware that they are prohibited from requiring an employee to accept an accommodation without a prior discussion, and cannot require an employee to take leave if there is a reasonable accommodation that can be provided. Of course, the employer cannot deny a qualified employee a job or discriminate against them in the workplace just because they need accommodations. 

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While the ADA, Title VII, the Family and Medical Leave Act and Pump Act each enforce that pregnant workers and new parents have the right to equal employment, despite physical limitations and needs, the PWFA actually requires employers to adapt to their employees within more generous guidelines. Turner is hopeful that this act will protect families at a much larger level than previous laws — and without a huge financial lift on the employer's part.

"Most accommodations cost less than $100, and when you look at the fact that accommodations save you on hiring and training new people, you see a huge return on investment," says Turner. "The PWFA is really going to open employers' eyes on how they can accommodate a lot more than they thought they could."