Expansion of Pregnant and Nursing Rights: What Employers Need to Know about the Pregnant Workers Fairness Act and PUMP Act

Two new laws that were included in the federal omnibus spending bill, enacted on Dec. 29, 2022, expand workplace rights for employees affected by pregnancy, childbirth or related conditions starting in 2023, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act and the Pregnant Workers Fairness Act (PWFA).

Oftentimes in the workplace, workers face discrimination around pregnancy and related leaves of absence. There are more than 30 states and cities that have laws that accommodate pregnant workers to some degree. In addition, the FMLA, ADA, the PUMP Act and Title VII of the Civil Rights Act of 1964 (Title VII) provide some federal protections and accommodations under certain circumstances.

But, according to a report by the American College of Obstetricians and Gynecologists, prior to PWFA, there was no federal law guaranteeing comprehensive accommodations for pregnant and postpartum workers. Therefore, pregnant women and their families were left without wages, job protection and/or healthcare benefits during an already challenging time of their lives. The PWFA, which is part of Title VII, is a new law that expands on those existing protections by requiring covered employers to provide “reasonable accommodations” to employees with known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA), which was signed into law on December 29, 2022, became effective on June 27, 2023. Under this law, employers with at least 15 employees must provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an “undue hardship.”

The U.S. Equal Employment Opportunity Commission (EEOC) has started accepting charges under the PWFA for situations complained about having happened on June 27, 2023, or later. However, according to a recent survey by leave and accommodation management solutions provider AbsenceSoft, 43% of HR leaders are either not at all or only somewhat familiar with the PWFA. Nearly half of respondents said their HR department is not at all prepared or just starting to prepare for the newly effective PWFA. Therefore, to avoid the risks of fines and lawsuits, employers should take steps now to ensure compliance with the PWFA.

What Is the PWFA?

The PWFA amends the Americans with Disabilities Act (ADA) to require reasonable accommodations for a qualified individual’s limitations related to pregnancy, childbirth or related medical conditions. This law only applies to accommodations since existing laws enforced by the EEOC make it illegal to terminate or otherwise discriminate against workers on the basis of pregnancy, childbirth or related medical conditions.

Importantly, the PWFA does not replace federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions. Currently, more than 30 states and localities have laws providing accommodations for pregnant workers.

Who Does the PWFA Protect?

The PWFA protects employees and applications of covered employers who have known limitations related to pregnancy, childbirth or other related medical conditions. Covered employers include private- and public-sector employers with at least 15 employees, including federal agencies, employment agencies and labor organizations.

Additionally, covered employers cannot:

• Require an employee to accept an accommodation without a discussion between the worker and the employer about the accommodation.
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation.
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.

What Employers Need to Know

While the PWFA does not specifically mandate a separate leave entitlement for pregnancy-related reasons, it does require organizations to provide reasonable accommodations to pregnant employees, which may include leave as a form of accommodation. The leave duration would depend on the specific circumstances and needs of the pregnant employee.

Employers should:

• Get familiar with the law;
• Review and update policies and practices;
• Train managers, supervisors and HR on PWFA requirements;
• Enact an accommodation process for pregnant workers.

The above information does not constitute advice. Always contact your employee benefits broker or trusted advisor for insurance-related questions.