Supporting working parents is a critical part of every business and organization. The reality is that without a federal parental leave policy or child care assistance policies, parents are left juggling how to care for their children and maintain a career to provide for their families. Enter the Pregnant Workers Fairness Act (PWFA).
As an employer, you are responsible for taking care of your employees — especially parents, pregnant workers, and moms re-entering the workforce. The introduction of the PWFA is a step in the right direction to better provide for pregnant employees and working mothers.
As an employer, you should be well-versed in the PWFA to support your employees, ensure compliance, and understand the repercussions if you fail to adequately support your eligible employees.
What Employers Need to Know About the Pregnant Workers Fairness Act
President Biden signed the PWFA into law on December 29, 2022, as a part of the Consolidated Appropriations Act, 2023, and took effect on June 27, 2023. PWFA applies to employers with 15+ employees and states that it is unlawful for employers to:
- Not make accommodations related to pregnancy, childbirth, or related medical conditions unless the employer can show undue hardship.
- Require an employee to accept another accommodation other than the reasonable accommodation.
- Deny employment opportunities if such denial is based on the need of the covered entity to make accommodations.
- Require an employee to take leave when an accommodation can be provided.
- Take adverse actions in the Terms or Conditions of employment based on the accommodation.
According to the Pregnant Workers Fairness Act, employers are subject to damages if appropriate accommodations are not provided.
Pregnant Workers Fairness Act Damages Include:
- Back pay, compensatory damages (past/future emotional distress), punitive damages, attorneys’ fees, and other related costs.
- Damage caps for punitive and compensatory damages based on employer size:
- 15-100 employees – $50,000
- 101-200 employees – $100,000
- 201-500 employees – $200,000
- 501+ employees – $300,000
PWFA took effect on June 27, 2023, and the Equal Employment Opportunity Commission (EEOC) will begin issuing regulations by December 29, 2023. Though the PWFA is newly implemented, it’s expected for pregnancy accommodations to be similar to ADA.
However, Seth Turner, co-founder and chief strategy officer at AbsenceSoft, a platform for leave and accommodation management, states:
“The ADA is pretty clear that you can’t change the job’s essential functions to make an accommodation. But the PWFA allows employers to reevaluate those essential functions in the light of pregnancy and make some changes.”
For employers, it’s critical to engage in the interactive process. This conversation between employers and employees helps determine if an employee requires reasonable accommodations to perform the essential function of their job.
Formal leave should be the last resort if pregnant workers can continue working. It’s your responsibility as an employer to provide the accommodations necessary to suit the employee best and enable them to continue performing their job tasks.
- Being able to sit or drink water
- Receiving closer parking
- Having flexible hours
- Receiving appropriately sized uniforms and safety apparel
- Receiving additional break time to use the bathroom, eat, and rest
- Taking leave or time off to recover from childbirth
- Being excused from strenuous activities and/or exposure to chemicals not safe for pregnancy
Finally, it’s important to remember that these protections don’t end at birth. Limitations related to childbirth are also protected for employees.
If you’re an employer of 15 or more employees, we highly recommend that you familiarize yourself with the employer responsibilities included in the Pregnant Workers Fairness Act. To access more information related to the PWFA, click here.