What to Expect (from Work) When You Are Expecting
Everything You Need to Know About the Pregnant Workers Fairness Act
Work like you don’t have kids and parent like you don’t have a job.
If you are a parent in today’s workforce, this thought has probably run through your head more times than you can count. Work-life balance for families is a constant struggle. The struggle begins the moment you find out that you are expecting and it never stops.
Unlike in other countries, support for new parents has been slow to grow in American workplaces. For example, the United States is the only industrialized nation (and only one of six nations globally) that does not mandate paid maternity leave at the national level. If you had paid maternity leave (I did not), it was likely due to either state law requirements or because a private employer chose to provide it. The federal government did not offer paid maternity leave to civilian employees until 2020 - long overdue.
One relatively new protection for expectant parents comes from the Pregnant Workers Fairness Act (PWFA), which requires employers to accommodate an employee’s known limitations related to pregnancy, childbirth, and other related medical conditions. The PWFA went into effect in 2023 and the regulations to implement the law were issued by the Equal Employment Opportunity Commission (EEOC) in 2024. Although this law is not breaking news, many federal employees and federal human resources professionals are not well-versed in its protections. In this article, I will break down the protections offered by the PWFA and review other parental protections available to federal employees.
Overview of the Pregnant Workers Fairness Act
The PWFA was first introduced in Congress in 2012, but it took over a decade to become law. We are a little over two years post implementation and there is still much to learn.
The PWFA applies to both private and public sector employers with 15 or more employees, which includes the federal government. It requires that employers provide:
[R]easonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.
42 U.S.C. 2000gg-1(1)
This sounds a lot like the reasonable accommodation (RA) process for employees with a disability under the Americans with Disabilities Act (ADA), so you might be thinking - Why do we need the PWFA when the RA process is already available? The answer is that the RA process under the ADA only covers employees with a disability, and pregnancy and childbirth without any complications is not a disability. The PWFA expands the RA process to cover all pregnancy and childbirth related conditions, even those that are considered normal and routine.
To illustrate, the EEOC provides the following examples of conditions covered under the PWFA: “uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation.” (EEOC’s What You Should Know About the Pregnant Workers Fairness Act; see also 29 CFR 1636.2(b)(2)). The EEOC’s regulations also include “potential or intended pregnancy” in its non-exhaustive list of examples and this has been interpreted to cover infertility and fertility treatments as well. 29 CFR 1636.2(b)(2). Limitations related to these conditions could be minor or episodic (such as morning sickness) or more significant (such as not being able to walk, stand, or lift weight).
The EEOC also provides examples of common accommodations for employees and employers to consider:
Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
Changing food or drink policies to allow for a water bottle or food;
Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
Changing a uniform or dress code or providing safety equipment that fits;
Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
Telework;
Temporary reassignment;
Temporary suspension of one or more essential functions of a job;
Leave for health care appointments;
Light duty or help with lifting or other manual labor; or
Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
EEOC’s What You Should Know About the Pregnant Workers Fairness Act
One important difference between the PWFA and the RA process under the ADA is that the PWFA permits temporary suspension of one or more essential functions of an employee’s position. When an employee with a disability is granted an RA, the employee must still be able to perform the essential functions of the position with or without the requested accommodation. In contrast, essential functions can be temporarily suspended under the PWFA as long as the pregnant worker can perform the function again in the near future and the employer can absorb the work. For example, if a pregnant employee’s position requires them to lift heavy boxes, the employee could be temporarily reassigned to less strenuous duties under the PWFA if there are other employees that could lift the heavy boxes on a temporary basis.
Like the RA process under the ADA, there is no specific format that must be used to request an accommodation under the PWFA and there are no “magic words” that an employee must use to trigger a request. Employees can simply tell their employer that they have a limitation related to pregnancy or childbirth and request a change to their environment, schedule, or other working condition. Once the request is made, employers are required to engage in the interactive process, which just means that they are required to discuss the limitation and the requested change with the employee. Through that conversation, the employer and employee should determine whether the accommodation is feasible, and if not, what other accommodations might work.
An employer may also request medical documentation to support a request under the PWFA, but documentation cannot be requested if the limitation is obvious or if the employer is already aware of the limitation. The EEOC instructs employers to keep in mind that medical documentation can be difficult to obtain early in pregnancy, and they anticipate most PWFA requests will be easy to accommodate. If medical documentation is requested, it should be limited (confirm the condition, confirm the condition is related to pregnancy or childbirth, and describe the change needed).
Beyond the PWFA
The PWFA is a much-needed expansion of the RA process for pregnant workers, but it is only focused on the accommodation process. Employees should remember that there are other laws that offer additional protections for expectant parents.
First, Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions. Examples of discriminatory conduct may include rejecting a qualified job applicant because they are pregnant or plan to have children or passing over a pregnant employee for a promotion. If a federal employee believes they have been discriminated against on these bases, they have 45 days from the date of the alleged discriminatory act to contact their Equal Employment Opportunity (EEO) office.
Second, the Family Medical Leave Act (FMLA) requires employers, including the federal government, to provide up to 12 weeks of unpaid leave for the birth of a child and care of the newborn in a single 12-month period. In 2020, the federal government also authorized Paid Parental Leave (PPL), which provides federal employees who have invoked FMLA with up to 12 weeks of paid leave during their FMLA period. Keep in mind that you cannot use PPL without first invoking FMLA, and PPL cannot be used until after the birth of a child. Therefore, it is generally most beneficial for employees to not invoke FMLA until after the birth of the child. For example, if an employee invokes FMLA two weeks prior to the birth of their child because they experience pregnancy-related complications, they will only have 10 weeks of FMLA left after the child is born and will therefore only be able to use 10 weeks of PPL. (Had that employee requested two weeks of accrued sick leave to cover the complications prior to the birth of the child and invoked FMLA after the child was born, they could have received the full 12 weeks of PPL.) Also, keep in mind that employees must have at least 12 months of civilian service to qualify for FMLA, and by extension, PPL.
Finally, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires employers, including the federal government, to provide nursing employees with reasonable break time and a private, non-bathroom space to express breast milk at work.
I’m Expecting. What Next?
First, pregnant workers should consider whether they need an accommodation. Are you struggling to get to work on time due to morning sickness? Has your physician imposed physical restrictions on you? Employees with limitations should think about what changes to the work environment might enable them to successfully perform their job. The list of potential accommodations provided by the EEOC is a great place to start brainstorming. If an employee requires an accommodation, they should submit the request to their supervisor in a timely manner. Although employees are not required to submit accommodation requests in a specific format, it is generally advisable to submit requests in writing to keep expectations and communications clear. There should be no question about what was requested and when it was requested if those words are in writing. This information could be critical if an employee is unsatisfied with the results of their request.
Next, pregnant workers should develop a plan for how they will handle their maternity leave and communicate that plan to their supervisor. Do you plan to take any sick or annual leave prior to invoking FMLA and requesting PPL? Do you plan to take all 12 weeks of FMLA/PPL at once, or do you plan to break it up? A word of caution: babies don’t follow our schedules. Employees, and supervisors, should expect plans to shift, but early communication should make last minute changes easier to navigate.
Finally, the best defense is education. Learn about the protections available to you and your family. Understand your options and be proactive in planning and communicating with your agency. Also, reach out for help if needed. An experienced federal employment law attorney can help you navigate roadblocks you may encounter along the way, including denial of an accommodation request, denial of a leave request, or other potentially discriminatory acts.
Being a parent is a constant balancing act. The more you know upfront, the better prepared you will be when the curveballs are thrown.
