What to Know About the U.S. Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) kicks into effect on 27 June 2023. Here’s what U.S. employers need to know about the new law.

What Is It?

The law—which was enacted by U.S. President Joe Biden at the end of 2022—advances the rights of pregnant workers and could potentially increase women’s labor force participation, an area that the United States has been behind on.

This new law requires employers with more than 15 employees to provide reasonable accommodations to pregnant workers, those recovering from childbirth, and those with related medical conditions, such as women who need to pump breast milk at work.

Under the law, workers can request leave to recover from childbirth, a miscarriage, postpartum depression, mastitis, or other pregnancy-related health conditions—even emplyees who do not qualify for the Family and Medical Leave Act.

Who Does the Law Apply to?

Unless the accommodation causes the employer an “undue hardship,” according to the U.S. Equal Employment Opportunity Commission (EEOC), the law applies to private and public sector employers with at least 15 employees. Other organizations impacted by the PWFA include Congress, employment agencies, federal agencies, and labor organizations.

So, what are reasonable accommodations? Some examples provided by a House Committee on Education and Labor report on the PWFA include the following:

• The ability to sit or drink water;
• Closer parking;
• Flexible work hours;
• Properly sized safety apparel or uniforms;
• Additional break time for eating, resting, and using the bathroom;
• Taking time off to recover from childbirth; and
• Not being forced to participate in activities that could be unsafe for pregnancy.

Why Is This a Big Deal?

For pregnant workers in the United States, the PWFA is “the first breakthrough in more than four decades,” according to Axios.

In the United States, an estimated 2.8 million women a year (70 percent) are pregnant while also working, according to an October 2022 report from the National Partnership for Women and Families. “While not all pregnant workers need accommodations in the workplace, all pregnant workers benefit from having protections they know will keep them healthy and on the job,” according to the report.

With the PWFA, millions of U.S. women could remain a part of the workforce while maintaining their health and safety during a pregnancy, especially as the House Committee on Education and Labor estimated that 75 percent of working women will become pregnant while employed.

Previously, if women sued employers over failures to accommodate to health concerns while pregnant, employers would often win the case because the 1978 Pregnancy Discrimination Act did not explicitly cover such accommodations, according to the American Civil Liberties Union.

This meant that pregnant people would have to choose whether to be forced out of jobs right when her family was growing or risking her health by ignoring a doctor’s order. This doesn’t even crack into the business continuity impacts on the employer, which then has to find, hire, and train a replacement, or potentially deal with a hit on brand reputation if the suit makes the news.

On the Horizon

“The law may also effectively be a backdoor expansion of maternity leave in the [United States],” Axios noted. “That's because workers can request leave to recover from childbirth—even those who don't qualify for the Family and Medical Leave Act,” which has other restrictions that PWFA will bypass. The PWFA, however, does not replace other laws that are more protective of pregnant workers, such as the Fair Labor Standards Act or local, state, or other federal laws, the EEOC said.

For more guidance around this new law, visit this primer from the EEOC or this one from Ogletree Deakins.