Pregnant Americans have long faced difficulties in the workforce.
Last year, the U.S. Senate voted to include the Pregnant Workers Fairness Act (PWFA) in the 2023 federal spending package. On December 29, 2022, President Biden signed the federal spending package, including the PWFA, into law. This new law went into effect on June 27, 2023 and creates new expectations for employers of pregnant and nursing workers.
I’m a board-certified attorney and here is a four-step approach for leaders, business owners, and executives to navigate through these new requirements.
Step 1: Determine how it applies to your team
The first step is for leaders to understand who the PWFA applies to.
The PWFA requires employers with 15 or more employees to provide pregnancy-related reasonable accommodations to job applicants and employees with pregnancy-related limitations. The PWFA tracks the Americans with Disabilities Act (ADA) and existing state law protections for pregnant workers.
Prior to the PWFA, many courts held that a healthy pregnancy alone was not a “disability” requiring accommodation under the ADA. Now, the PWFA will provide protection to employees or applicants with “known limitations,” which are defined as mental or physical conditions emerging from pregnancy, childbirth, or a related medical condition. Tracking the ADA, the PWFA protects only those individuals who are “qualified,” which means they are still able to perform the essential functions of their specific job position.
Step 2: Avoid pitfalls
I believe the biggest mistake teams can make is to take a “one-size fits all” approach to PWFA compliance. The Equal Employment Opportunity Commission (EEOC) has issued guidance listing some common accommodations that businesses might need to provide, including additional break time to drink water, eat, or use the restroom, a parking spot closer to the entrance, or flexible work hours. However, the PWFA does not mandate any specific accommodations for all employers and employees. Therefore, businesses should be careful to discuss each employee’s limitations and analyze potential accommodations on an individualized basis.
The PWFA gives businesses flexibility by requiring only accommodations that are reasonable. What is reasonable for one industry or for one job position might be a burden for another industry or another job position. For example, allowing an officer manager to work from home during the mornings for a few weeks to accommodate morning sickness might be reasonable if computer and video conferencing software allow a worker to complete their duties. On the other hand, an employee working at a manufacturing facility in a position requiring constant in-person supervisory responsibilities may not be easily accommodated with remote work.
Businesses should also be aware of when PWFA obligations are triggered. Employees are not required to specifically mention the Pregnant Workers Fairness Act when requesting an accommodation. Managers and human resource professionals should not expect formal written notice by an employee. Instead, if the employee asks for help with limitations caused by pregnancy, the PWFA is triggered. Factual disputes about the adequacy of notice are expected in the future. For example, does a pregnant employee’s brief mention to a manager during a lunch break that she is dealing with morning sickness enough to put the company on notice that it needs to accommodate known limitations? These types of issues will depend on the specific circumstances of the communication. Again, businesses must take the time and effort to give employees an individual consideration.
Step 3: Update key players and policies
As with any legal compliance issue, any company is only as strong as its weakest link. Therefore, it is critical to ensure that all key employees with supervisory responsibilities and all employees in human resources are updated on these new laws.
Additionally, if an organization has an employee handbook (which is prudent for a variety of legal reasons), it should be updated with a new policy to reflect that pregnant and nursing employees have additional protections and rights. This update should indicate whether the organization has a preferred procedure for requesting benefits.
Step 4: Consider the PUMP Act
The federal spending package also included the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act. A different federal law, the Fair Labor Standards Act (FLSA), already required employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child’s birth.
The PUMP Act expanded these rights to a variety of jobs previously excluded under the FLSA, including managers, nurses, agriculture workers, and teachers. Under the PUMP Act, employees are entitled to a place to pump at work that is shielded from view and free from intrusion from coworkers and the public. Importantly, this private space for pumping cannot be a bathroom.
However, the PUMP Act provides an exception for businesses with fewer than 50 employees, if compliance would impose an undue hardship. Given the related issues, it is beneficial for businesses to consider the implications of the PUMP Act when updating their policies and protocols for the PWFA.
Given the complexities of the PWFA and PUMP Act compliance, business owners and executives should consult with legal counsel to ensure they are following the new requirements and avoiding any unnecessary exposure.
Roger W. Feicht is a board-certified shareholder attorney with the Gunster Law Firm’s West Palm Beach office.
Recognize your brand’s excellence by applying to this year’s Brands That Matter Awards before the early-rate deadline, May 3.
