Here’s what you need to know about the Pregnant Workers Fairness Act (PWFA) final regulations

We have bad news and we have good news. The bad news—employers have to stay up to date with yet another leave law that recently went into effect. The good news—we’re here to help you understand it. The Pregnant Workers Fairness Act (PWFA) has been in the works for a long time. It was signed into law in December of 2022, became effective in June of 2023, final regulations were released in April of 2024 and it finally went into effect on June 18, 2024.

tl;dr: What is the Pregnant Worker’s Fairness Act?

The PWFA requires that all employers with 15 or more employees provide reasonable accommodations for a qualified applicant’s or employee’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer “undue hardship.” 

There’s a lot to unpack there, so keep reading for a deep dive into the PWFA ↓

“Qualified employees” under the PWFA and how it differs from the Americans with Disabilities Act (ADA)

As with most leave laws, employers must make decisions on a case-by-case basis and evaluate:

1. The impact on an employee’s ability to perform their essential job functions with or without reasonable accommodations and
2. If they are unable to do so, whether or not leave is a reasonable accommodation 

In general, the definition of “qualified” under the PWFA is a bit different and actually more protective of employees than under the ADA. Like the ADA, an employee is qualified if they can perform the essential functions of the job with or without reasonable accommodation that does not pose an undue hardship. “With or without” reasonable accommodation just means that employees can perform essential job duties on their own or with the help of a reasonable accommodation. Under the PWFA, “essential functions” of a position are… the fundamental duties of the job (vague, we know, but you’ll have to take that up with Congress).

Unlike the ADA, an employee is also qualified if they cannot perform the essential function of the job and if these three things are true:

1. The inability to perform the essential functions is “temporary” 
2. The employee can perform the functions “in the near future”
3. The employee’s inability to perform the essential functions can be reasonably accommodated

Reasonable accommodations under the PWFA

A “reasonable accommodation” is a broad concept—it’s any change in the work environment or the way things are usually done at work. We like to think of accommodations as two categories: leave accommodations (time away from work), and then everything else. The PWFA is very clear that employers should focus mostly on the second category (everything else) and leave accommodations should be the last resort.

Examples of non-leave accommodations:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom
• Changes to a work schedule, such as having shorter hours, part-time work, or a later start time
• Remote work
• Temporary reassignment or modified work duties 

This list is not exhaustive—there are many other reasonable accommodations that may make sense based on an employee’s situation. The accommodation process is dynamic, so an employee may need different accommodations at different times during pregnancy or after childbirth. Check out our non-leave accommodation checklist for more details

When employers might need to consider leave accommodations

Employers will usually need to consider leave as a reasonable accommodation if employees need time away from work to go to healthcare appointments or recover from childbirth or other medical conditions related to pregnancy and childbirth.

We recommend the following order of operations to kick off discussions with the employee:

1. Determine whether or not any leave is available under the FMLA or state leave laws 
2. Confirm whether or not leave is available under your company leave policies
3. If an employee has no leave available under laws or company policies, consider whether leave should be provided as a reasonable accommodation under the PWFA or ADA

How the PWFA interacts with FMLA and state leave laws

The PWFA runs concurrently with other leave laws and does not override any federal, state, or local laws. This means if there are overlapping legal obligations under multiple laws at the same time, employers must provide the most generous legal protection available to the employee.

If the employee qualifies for FMLA

If a pregnant employee qualifies for FMLA, the employer still must provide a reasonable accommodation under PWFA that would eliminate or reduce the pregnant employee’s need to take FMLA leave due to pregnancy-related limitations. 

If there is no reasonable accommodation

On the other hand, if there is no reasonable accommodation that will enable the pregnant employee to continue working in lieu of leave, the pregnant employee can still take FMLA leave if available. 

If the employee has exhausted FMLA and/or company leave policies

If FMLA is exhausted or unavailable, the pregnant employee may still be entitled to leave as a PWFA reasonable accommodation even if the employer does not offer leave as an employee benefit or the employee is not eligible for leave under the employer’s leave policy. Here are some (not all) of the situations where leave as a reasonable accommodation under the PWFA may be available:

• Prenatal appointments
• Recovery from childbirth
• Medical appointments

Where to learn more about the PWFA

The EEOC published a comprehensive summary of PWFA for employers that dives even deeper into the regulations: What You Should Know About the Pregnant Workers Fairness Act.

We’ve just scratched the surface here but it’s clear there’s a lot for employers to keep track of with PWFA, on top of managing run of the mill parental leaves. Chat with our team to see how you can seamlessly manage PWFA leave accommodations in Cocoon.