Under the Pregnant Workers Fairness Act (PWFA), small businesses are required to provide accommodations for pregnant workers. While these accommodations are only for a temporary period of time, they can legally cover essential job duties. To avoid falling afoul of this law, learn more about this new legal requirement. 

How the Pregnant Workers Fairness Act Works 

The PWFA originally went into effect on June 27, 2023. On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its final regulations about the law. 

At its heart, this law is designed to support pregnant workers. Workers shouldn’t have to choose between earning a living and their health. However, previous laws fell short when it came to helping pregnant employees. For example, the Family and Medical Leave Act (FMLA) gave workers 12 weeks of unpaid time off for having a child or dealing with medical issues. This law only protected a worker’s job. It did not provide the employee with any income during their leave. 

Likewise, the Americans with Disabilities Act (ADA) only covers disabilities. Because pregnancy and pregnancy-related issues generally aren’t considered disabilities, the ADA doesn’t cover pregnant workers.

Under the PWFA, pregnant workers can get reasonable accommodations for any medical conditions related to or arising from pregnancy, childbirth, or similar issues. Some accommodations, such as extra bathroom breaks or the ability to drink water, should be automatically assumed and provided.

 

Ways the PWFA Impacts Your Small Business

As a small business owner, you must follow the PWFA once you have 15 workers. While many of these accommodations are similar to the ADA, there are some important differences. 

Small Businesses Must Be Aware That Accommodations May Be Needed

Under the PWFA, the onus to provide accommodations is on the employer. The worker doesn’t have to ask for these accommodations.

In a recent Mission to Grow podcast, an HR lawyer from Jackson Lewis, Brian Shenker, discussed PWFA requestions and how employers are obligated to recognize accommodations without being asked. “Let’s say I was a pregnant woman, and I showed up to this webinar 10 minutes late today. And I said sorry, Mike, morning sickness got me again, but I’m good to go,” says Shenker. “That might be enough to tell you, as an employer, that I might need an accommodation to maybe come into work a little later or start my day later or somehow deal with the morning sickness.”

If an employee has a baby shower at work, mentions to their supervisor that they’re pregnant, or discusses any pregnancy-related conditions, your workplace must intervene and offer accommodations. Under the law, the worker is not required to ask for accommodations. 

Accommodations Must Be Made Quickly 

To stay in compliance with the PWFA, you must make accommodations as quickly as possible. The PWFA requires employers to discuss potential accommodations with the employee. Then, the agreed-upon accommodations must be implemented right away. 

There are situations where you can request documentation from a medical provider that an ailment is related to pregnancy or childbirth complications. However, the PWFA tends to discourage documentation requirements for many conditions. If an employee says that a requirement to stand is making them physically uncomfortable, you should generally just offer them a chair or a similar accommodation instead of requiring a doctor’s note. 

Essential Job Functions Can Be Affected 

Under the ADA, the worker must still be able to perform their essential job duties. This requirement doesn’t exist for the PWFA. The worker doesn’t have to perform essential job duties for the near future if the cause of the task’s non-performance is related to pregnancy or childbirth.

Small Businesses Must Demonstrate Undue Hardship 

If providing PWFA protections is genuinely a hardship for your company, you don’t have to provide them. However, it’s important to keep in mind that this is a situation where you’re guilty until proven innocent. As an employer, it is up to you to provide documentation that PWFA protections are an undue hardship for your organization. 

This documentation can be something as simple as a notebook where you keep information about how you make business decisions. Because the quality of your notes and documentation will determine the outcome of potential EEOC cases in the future, you should exercise caution when documenting undue hardship cases. Often, the easiest option is to simply follow the PWFA and provide accommodations to your workers.

PWFA Requires Specific Accommodations 

In addition to worker-specific accommodations, the PWFA assumes that all pregnant workers should receive the following accommodations automatically. 

• Letting workers keep water nearby to drink when they need to. 
• Allowing employees to take extra bathroom breaks. 
• Letting workers sit or stand when needed for their comfort. 
• Giving workers more breaks for eating and drinking if they need them.

This is not an exhaustive list of accommodations. However, these accommodations are specifically mentioned in the PWFA as accommodations your workplace must make for pregnant workers. To obtain these accommodations, the worker doesn’t have to submit any medical documentation.

Requirements Kick in Once You Have at Least 15 Employees 

The PWFA applies to any business that has at least 15 employees. You must calculate this figure based on the total number of part-time and full-time workers you have. If you have at least 15 workers for 20 weeks during the previous or current year, you must provide PWFA accommodations to workers who need them. 

Penalties Can Happen If You Don’t Comply With the PWFA

As an employer, you may be penalized if you don’t follow the PWFA. These penalties generally line up with Title VII penalties. For example, workplaces with 15 to 100 employees can be charged $50,000 for not complying with the PWFA. For workplaces with 500 or more workers, compensatory and punitive damages can be up to $300,000. 

Prepare for PWFA Requirements Ahead of Time 

It is important to remember that none of these requirements are set in stone. After adopting your PWFA policy, you may need to change it if PWFA rules are legally challenged in the future. However, it’s a good idea to learn about the existing rules. Then, determine what your workplace needs to do to comply with them.

Navigating HR laws and regulations can be challenging for small businesses. If you want to learn more about how to navigate the PWFA and other HR compliance requirements, reach out to Asure’s team of small business HR and payroll experts today.