What is the PWFA, and what do employers and employees need to know about it? originally appeared on Quora: the place to gain and share knowledge, empowering people to learn from others and better understand the world.
The Pregnant Workers Fairness Act (PWFA) is an exciting (and long overdue) change to federal employment law that seeks to improve the health and economic security of pregnant employees by making thousands of workplaces more pregnancy friendly. It does this by requiring that employers with 15 or more employees provide pregnancy-related accommodations to employees and applicants (hereafter “employees”).
Depending on an employer’s size, location, and general approach to pregnancy in the workplace, this could be a big deal or business as usual. Let’s break it down.
Pregnancy Related Accommodations – When and What
Under the new law, employees are entitled to accommodations for known limitations related to or affected by pregnancy, childbirth, or related medical conditions, whether mental or physical. Pregnancy-related conditions include things like morning sickness, gestational diabetes, post-partum depression, and lactation, just to name a few.
At this point, employers might be thinking, “I already provide accommodations for pregnancy disability, how is this different?” That’s a good question and it gets to the heart of the law. The PWFA expands employer obligations beyond what is already required by the Americans with Disabilities Act (ADA) in that being entitled to a pregnancy-related accommodation does not require that the employee’s condition rise to the level of a disability.
The PWFA acknowledges that pregnancy comes with an assortment of challenges—many of them not disabling but still very real—and requires that employers make the workplace more accommodating of those challenges. For instance, employers might need to:
- Provide more frequent or longer breaks
- Allow exceptions to a food or drink policy so an employee can eat more frequently, or at their work area
- Provide seating or allowing the employee to sit more frequently if their job requires standing
- Observe limits on lifting
- Provide closer parking
- Allow an employee to come in later when experiencing morning sickness
- Shift an employee to light duty
Employers should keep in mind that many states have already implemented pregnancy accommodation laws, some of which may be more generous than the PWFA. Employers will need to apply the law—or the aspect of each law—that is most favorable to employees.
The Accommodation Process
The PWFA doesn’t allow employers to automatically ask for a doctor’s note or other proof of the need for accommodation. Much like how an employer shouldn’t ask someone in a wheelchair to prove that they need a ramp, if a visibly pregnant employee is asking for a common sense accommodation, the employer shouldn’t ask for documentation.
That being said, the PWFA allows for, and in some cases requires, use of the interactive process. This is the same interactive process employers are familiar with from the ADA, and it might include asking for input from an employee’s medical care provider to better understand their limitations and how they can be addressed in the workplace. But employers aren’t required to go three rounds with employees if they’re willing to provide the desired accommodation. Remember that that point of the law is to make work-life easier on pregnant employees, not increase the administrative burden for employers.
Undue Hardship Exception
Similar to the ADA, there is an exception to providing an accommodation if it would cause an undue hardship on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense. This is a high standard for most employers to meet and the exception should be used sparingly, if at all. And once again, employers should be cognizant of any state law regarding pregnancy accommodation – some don’t allow the use of the undue hardship exception for particular requests like seating or lifting restrictions down to a certain weight.
What to Do Now
First, make sure that your HR people, managers, and anyone else who might receive a request for accommodation understands the law and can deal with those requests appropriately. Second, draft a policy for your new hire packet or handbook so that employees know about their rights under the law and whom to approach if they need an accommodation. Finally, rejoice in this new clarity! Now employers can give pregnant employees “special treatment” without worrying that it’s discriminatory toward non-pregnant employees. On the flip side, employers who didn’t provide basic niceties in the past were probably more likely to find themselves on the receiving end of a sex discrimination lawsuit. Now this stumbling block has been removed. And even more rules and guidelines for the PWFA are expected to be released by the Equal Employment Opportunity Commission (EEOC) by the end of the year, further banishing the gray area. While employers often bristle at new regulations, the PWFA should prove to be a win-win for employers and employees alike.