Preparing for the Pregnant Workers Fairness Act

Treasury & Risk sister publication BenefitsPRO recently caught up with Seth Turner of Absencesoft, a leave and accommodation management software provider, to uncover everything employers and employees need to know about the Pregnant Workers Fairness Act.

BenefitsPRO:  What is the Pregnant Workers Fairness Act (PWFA), and when did it take effect?

Seth Turner:  The Pregnant Workers Fairness Act, or PWFA, is a U.S. federal law that took effect on June 27, 2023. It makes pregnancy and pregnancy-related conditions a covered disability under the Americans with Disabilities Act (ADA). Specifically, private- and public-sector employers with at least 15 employees are now required to provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions.

BP: How can employers prepare for PWFA?

ST:  The first step is education. HR and managers must be made aware of the changes brought about by the PWFA, and policies should be reviewed and updated. Companies should also have a process in place to keep communication in one place so there is a single source of truth for all accommodation requests. Providing fair and equitable accommodations is key to staying compliant, and one key way to do this is to make sure you go through the full interactive process for every request.

Another key consideration: Companies must have a way for employees to make an accommodation request without having to notify their manager. This is something that we often see missing from organizations’ accommodation process.

BP:  How does the PWFA change what is already mandated by current legislation?

ST:  Prior to the PWFA, federally mandated legal protections in place for workers affected by pregnancy, childbirth, or related medical conditions included amendments to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). Under the ADA, employers are required to provide accommodations for pregnant employees only if their pregnancy, childbirth, or related medical condition results in a disability. The Pregnancy Discrimination Act, which amended Title VII, protects pregnant employees from discrimination but does not impose accommodation requirements.

Now [with the PWFA], more pregnant and postpartum workers are qualified to receive accommodations. To qualify, the following three things must be true: Their inability to perform an essential function must be for a temporary period; they will be able to perform the essential function in the near future; and the inability to perform the essential function can be reasonably accommodated.

The PWFA also prohibits employers from discriminating or retaliating against employees and job applicants based on their need for reasonable accommodations. Plus, absent undue hardship, employers may require an employee to take leave only as a last resort if no other reasonable accommodations can be provided.

It is important to note that some states already provided this level of protection, but federal laws did not. Ultimately, the PWFA ensures that pregnant employees, no matter where they live, receive the same level of protection and support as other employees with temporary medical conditions.

BP:  Why is it important that companies comply with the PWFA? What happens if they don’t comply?

ST:  Under the PWFA, it is considered illegal for an employer to fail to provide a reasonable accommodation for the qualified employee if it does not impose an undue hardship for the employer. Companies need to already be prepared to grant these accommodations, as there is no grace period provided. The Equal Employment Opportunity Commission (EEOC) started accepting complaints on June 27.

Employers must familiarize themselves with the law, adjust their policies accordingly, and train their employees to address and manage accommodation requests. Otherwise, they face the risk of legal penalties and, more importantly, damaging relations with their employees and causing potential reputational harm.

On the flip side, accommodating employees is far preferable to having an employee leave. In a 2022 study from the Job Accommodation Network (JAN), 50 percent of respondents said their accommodations cost nothing, and 43 percent said their accommodations had a median one-time cost of $300. Those costs are far less than the cost to recruit or replace a worker, which can be up to three times the cost of their salary.

BP:  What are some challenges employers face in managing accommodation requests? 

ST:  The biggest change that the PWFA will likely bring to workplaces is an increase in requests from pregnant workers and new mothers. A recent AbsenceSoft commissioned survey of 600 HR leaders found that 72 percent anticipate an increase in accommodation requests. The survey also found that 43 percent of HR leaders are either not at all or only somewhat familiar with PWFA. For a legal change of this magnitude, we encourage companies to prioritize closing this knowledge gap so that they are prepared to support their employees as the law requires.

Additionally, employers may not be very familiar with pregnancy-related conditions, such as preeclampsia, mastitis, gestational diabetes, and morning sickness. They should be prepared to make accommodations beyond just a stool to sit on or modifications to lifting requirements. Reasonable accommodations will vary from employer to employer, but could include flexible working hours, closer parking, not being exposed to compounds that are not safe for pregnancy, providing safety gear and uniforms that fit properly, and time off for appointments.

BP:  How can employers ensure they are complying with the ADA interactive process?

ST:  As the number of accommodation requests is expected to continue to increase, employers should engage in the full interactive process for every employee. This includes reviewing medical documentation, exploring options, being in conversation with each employee to determine a reasonable accommodation, and monitoring the accommodation. It is important that decisions be as fair and consistent as possible. The best way to fulfill all requirements and ensure compliance is a centralized, standardized, and automated process.

BP:  How can a robust accommodations program impact employee satisfaction and equity?

Accommodations can provide significant improvements to an employee’s overall experience, ensuring they have what they need to do their best work in ways that make them feel supported and comfortable. Additionally, creating an inclusive environment can have benefits for all employees.

It’s important that employers make accommodations as easy to request and as supportive as possible. This lets employees focus on what’s most important—their health and wellness—so they succeed at work. It’s also important for employers to educate employees about their accommodations programs, since they cannot proactively provide them—accommodations must be requested by the individual. Empowering workers with self-service access to their requests and providing multiple communications channels such as text and email go a long way.

From a company standpoint, a robust system allows HR to keep track of provided accommodations across an organization, ensuring that they stay compliant and their workers receive fair and equal treatment.