The Pregnant Workers Fairness Act: A Necessary Protection for Expectant Workers

posted by Neil E. Klingshirn | June 15, 2023 in FMLA/Medical Leave

The U.S. legal system has various policies in place to protect workers' rights and ensure fair treatment in the workplace. Laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act safeguard individuals against discrimination based on disability and sex, respectively. However, until recently, there was a significant gap in these protections that left a specific group of workers vulnerable: pregnant employees. The Pregnant Workers Fairness Act (PWFA), passed by the U.S. Congress, was enacted to fill this void and provide essential protection for these workers.

Understanding the Need for the PWFA

Pregnancy is a unique life event; it is neither a disability nor an issue related to sex discrimination. Although the ADA does provide some accommodation for pregnant women with pregnancy-related impairments, it does not fully encompass all pregnancy scenarios. Similarly, while Title VII prohibits sex discrimination, including discrimination based on pregnancy, it does not always protect pregnant employees from being denied reasonable accommodations they may need due to their pregnancy.

Therefore, despite the existing protective legislation, pregnant workers often faced an uphill battle when requesting accommodations that were essential for them to continue working during their pregnancy. They often encountered difficulties obtaining necessary job modifications, such as a change in physical tasks or work schedule adjustments. In some cases, pregnant workers were even pushed out of their jobs or forced to take unpaid leave. This situation was neither fair nor sustainable, and it called for a targeted solution – the Pregnant Workers Fairness Act ("PWFA").

The Pregnant Workers Fairness Act – A Closer Look

The PWFA was introduced to provide a much-needed legal safety net for pregnant workers. It prohibits covered employers from discriminatory practices related to pregnancy. They include:

  • not providing reasonable accommodations for pregnancy, childbirth, or related medical conditions of a qualified employee, unless it would cause undue hardship for the business;
  • requiring a pregnant employee to accept any accommodation other than a reasonable one arrived at through a collaborative process;
  • denying employment opportunities based on the need to accommodate the pregnancy;
  • requiring a pregnant employee to take leave if another reasonable accommodation can be provided; and
  • taking adverse action against an employee for requesting or using a reasonable accommodation related to their pregnancy.

The PWFA The Act defines "reasonable accommodations" as modifications or adjustments to the work environment that enable a pregnant worker to perform essential job functions. Accommodations can include temporary changes in work duties, providing seating or frequent breaks, or modifying work schedules. Importantly, employers are required to provide these accommodations unless they can demonstrate that doing so would impose an undue hardship on their business operations.

Finally, the PWFA introduces a new wrinkle to the concept of a “qualified individual” within the pregnancy context, which means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant will still be considered qualified if:

  1. any inability to perform an essential function is for a temporary period;
  2. the essential function could be performed in the near future; and
  3. the inability to perform the essential function can be reasonably accommodated

By comparison, an inability to perform an essential function with a reasonable accommodation, even temporarily, generally removes a disabled individual from protection under the ADA.

The PWFA: A Step in the Right Direction

The Pregnant Workers Fairness Act is a critical piece of legislation that fills the void left by the ADA and Title VII when it comes to pregnant employees. The Act acknowledges that pregnancy, while a natural part of life, requires certain adjustments in the workplace. It takes effect on June 27, 2023 and is codified at 42 USC 21G.


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