Culture   //   June 27, 2023

New law protecting pregnant workers takes effect – why it matters

Pregnant workers have finally caught a break.

When pregnant, regular work scenarios can quickly become a nightmare. A longish commute, not having fast access to a bathroom, and having long periods of time standing, can all become arduous and moments to dread for pregnant workers everywhere. But thanks to a new federal law coming through, that’s about to change, for the better.

The Pregnant Workers Fairness Act (PWFA), which goes into effect today, is a major advancement for the rights of pregnant workers, and the first breakthrough in more than four decades for both frontline and desk-based pregnant workers.

Under the new law, signed by President Biden at the end of 2022, employers with more than 15 employees will have to provide reasonable accommodations to pregnant workers, as well as those recovering from childbirth.

The law can even require companies to alter a job description if necessary. For example, a pregnant worker who is on their feet for most of the day will be given new duties that keep them seated at a desk. Other accommodations might include moving a desk closer to the bathroom if they need extra bathroom breaks. If someone travels often for work, that might be reduced or cut entirely. Or, it might mean giving that person the closest spot to the door in the parking lot. The list goes on. 

Some say that it has the potential to increase women’s labor force participation in the long term, but companies need to make sure that they get it right. Kara Govro, chief HR legal expert for HR and compliance firm Mineral, who is helping clients understand the new law, believes this shouldn’t be too hard.

“The intent is to keep pregnant employees working and healthy and boost the economy by making it easier for those people to stay employed,” said Govro.

The law complements existing laws, which have offered workplace protections, like the Family and Medical Leave Act (FMLA) and the PUMP for Nursing Mothers Act. And it also serves as an extension to the Americans with Disabilities Act (ADA).

“The ADA already required that if someone had a disability related to pregnancy that you provide accommodations,” said Govro. “This sort of lowers the standards. We have to offer accommodation to a pregnant employee who has a known limitation. We all know pregnancy is hard. It’s hard on the body and psychologically. The PWFA is acknowledging that pregnancy has a lot of challenges. They don’t necessarily rise to the level of disability, but an employer should really be able to provide basic accommodations to make life better for pregnant employees. Now an employee doesn’t need to prove they are disabled. If they’re pregnant, we can go ahead and make basic assumptions about what they need and what will make life better at work,” she added.  

"Now an employee doesn’t need to prove they are disabled. If they’re pregnant, we can go ahead and make basic assumptions about what they need and what will make life better at work.” 
Kara Govro, Mineral’s chief HR legal expert.

Under the new law, workers can also ask for time off to recover from a miscarriage, postpartum depression or other pregnancy-related issues. 

A total 2.8 million women a year are pregnant on the job — that’s 70% of all pregnant women in the U.S., per an analysis of census data from the National Partnership for Women and Families. Eight in 10 first-time pregnant women work until their final month of pregnancy, according to data from the U.S. Congress. Yet, 23% of moms have thought about leaving a job due to a lack of reasonable accommodation or fear of discrimination from an employer during pregnancy.

The Equal Employment Opportunity Commission will start accepting complaints on day one, different from other legislation that has a grace period.

Companies are underprepared

But are companies prepared? A survey of 600 HR leaders by leave and accommodation management software company AbsenceSoft found that 72% of companies expect an increase in accommodation requests. Yet, 43% of respondents are either not at all or only somewhat familiar with the PWFA. Almost half said their HR department was either not prepared at all or just starting to prepare. 

“It’s the first law in this space that has been passed at a federal level since the ADA was amended many years ago,” said Seth Turner, AbsenceSoft’s co-founder and chief strategy officer. “It’s a way for employees and employers to have conversations about how the pregnant employee can still work if they want to.”

While there are similarities to the ADA, the ADA says at the end of the day they aren’t entitled to change the job or required to give the disabled employee a different job. But because pregnancy is temporary, things are a little different.

“The PWFA changes that and really says you do need to look at whether you can change the job so the person can do it,” said Turner. “I think that’s what’s going to cause employers the most challenge. It has some interplay with FMLA and other leave laws, but the PWFA flips things around.”

Turner says that it’s important for employers to really look at what this law means, because while it might seem simple on the surface and similar to the ADA, there is more to it. He says there are three camps of employers: the small group that is still worried about accommodation abuse, a larger group trying to understand what they can and can’t do, and then the last is people who are taking a deep dive into asking questions like how will this change our administration processes, how will we have to look at job descriptions, and so on.

“It’s taking the time to look at what we’d really like them to do, but maybe they can’t do, as we look at PWFA requests,” said Turner. “What can fall out of those essential functions if needed? People really need to take the time to look at these requirements and document them.”

"If you can do this right, your pregnant workers who want to continue to work while they are pregnant, and with accommodations as they come back, will be cared for."
Seth Turner, AbsenceSoft's co-founder and chief strategy officer.

Overall though, Govro argues that it shouldn’t be a big lift for employers, especially those that already have diversity, equity and inclusion-centric work cultures.

“Employees who cared about that were already offering this,” said Govro. “Employers who don’t care about it and are salty about this law aren’t going to suddenly become friendly. It won’t become a real pregnant-friendly place when your manager is mad about having to get you a chair or letting you have more breaks.”

Turner agrees: “It’s fantastic from the perspective of how to have a good relationship between employers and employees and attracting and retaining people. If you can do this right, your pregnant workers who want to continue to work while they are pregnant, and with accommodations as they come back, will be cared for. The more likely they are to return. With the labor market so tight, you want to keep the employees who are already trained and are productive. This opens the conversation.”

Govro added that it shouldn’t increase the administrative burden for employees or employers and hopes that the interactive process doesn’t require things like doctor’s notes.

“I don’t think it’ll change the feel in a lot of workplaces, but it will change the practical lived experience of pregnant employees,” said Govro. “It’s a win-win for employers and employees because there wasn’t clarity around this before.”