Legal obligations to provide accommodations to pregnant employees under the Pregnant Workers Fairness Act (PWFA) apply to employers nationwide, but federal agencies may have a slightly different route for implementing the new law.

The PWFA, which President Joe Biden signed into law in December, will officially take effect June 27. It requires employers — including federal agencies — to offer accommodations to employees who have “known limitations” in the workplace that stem from pregnancy, childbirth and related medical conditions.

Federal agencies “will have to decide from an implementation perspective, what does that implementation look like? What will our procedures, our processes look like? How will we have to update our processes and procedures to reflect this additional protection?” Denesha James, an attorney advisor in the Equal Employment Opportunity Commission’s Office of Federal Operations, told Federal News Network.

The new law broadens the current set of employment anti-discrimination laws, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, to let pregnant employees request and receive accommodations, regardless of whether their limitations rise to the level of a disability.

“I think what was intended in enacting the law was to protect the holistic nature of the process,” James said. “It’s not just workers who have severe issues that rise to a certain level of the definition of a disability, but also some of the other medical conditions and limitations that are associated.”

How will agencies approach implementation?

Rather than creating an entirely new process, agencies can modify their existing procedures, if needed, to incorporate accommodations requests coming from the Pregnant Workers Fairness Act. Most, if not all, agencies already have a reasonable accommodations office or standard operating procedure that managers and employees can use to process reasonable accommodations requests.

“Upon notifying a manager that you need an ergonomic chair, for example, there’s a process for many agencies that exists today,” James said. “Of course, that procedure looks different based on the agency, based on the size, based on a number of other factors.”

Debra D’Agostino, founding partner of the Federal Practice Group, said it should be “quite easy” for agencies to implement this law.

“The government already has mechanisms in place for employees to request a reasonable accommodation,” D’Agostino said in an interview. “Most agencies have pretty well-established interactive processes that take place after an employee requests an accommodation. I suspect for the government, implementing this won’t be that heavy of a lift.”

As part of the new law, agencies will have to incorporate training around what the PWFA entails for federal employees. But agencies can combine the information with their already-existing mandatory anti-discrimination training, James said.

Agencies, and all employers, can also deny requests if they can show that providing the accommodation would cause “undue hardship,” for instance, if it would be extraordinarily expensive or prohibit normal operations.

But for this particular law, it may be rare for agencies to even bring up the issue, said Sharyn Tejani, associate legal counsel EEOC’s Office of Legal Counsel.

“Most accommodations regarding the Pregnant Workers Fairness Act will probably be temporary. And some of them might be quite minor. So it might not really ever reach the level of having this conversation about undue hardship,” Tejani said in an interview. “It can just be, ‘this is the kind of thing this person needs, this is what we can provide,’ and it should be hopefully be quite straightforward.”

In instances where agencies do want to invoke undue hardship under the PWFA, proving it will be an especially high bar.

“A small business might be able to say buying new chairs or building a ramp is just too expensive. The government can’t get away with that same sort of excuse. It really has to be something that makes it so the government can’t meet its mission because they’re providing this accommodation,” D’Agostino said. “I suspect agencies are going to have to provide these accommodations when requested.”

What do federal employees need to know?

The PWFA will likely have a wide-ranging impact. Notably, 72% of working women will become pregnant while employed at some point during their career, according to data from the Census Bureau.

At the same time, one in five working mothers said they have experienced discrimination based on pregnancy, according to 2022 data from the Bipartisan Policy Center. Close to one quarter said they considered leaving their jobs due to a lack of reasonable accommodations or fear of discrimination during pregnancy, and 21% said that they have been scared to tell their employers about their pregnancies due to fear of discrimination or retaliation.

The types of accommodations pregnant employees need at work largely depend on the individual person and the specific job. Under the PWFA, they can include extra breaks to use the bathroom or eat, the ability to sit and drink water, temporary placement on light duty, time off for medical appointments or recovery from childbirth, closer parking to an office building or being excused from strenuous activities.

For federal agencies, the PWFA will be an opportunity to remind federal managers about the initial communications around limitations employees might have, or what they might need, James said.

“There are no magic words associated with how one should be starting the conversation,” James said. “The communication should be the communication that you have with your employees on a day-to-day basis. But [managers should be] aware that there are lots of ways that a worker can convey that they have a limitation and then have the resources available to the manager to respond appropriately.”

Agencies could get into hot water, though, if they start making assumptions about what a pregnant worker can or can’t do.

“An agency can’t say, ‘because you’re pregnant, we think this is too unsafe, or we think you’re lifting too much weight, or you’re standing for too long, and therefore, we’re going to impose this accommodation on you,’” D’Agostino said. “It’s really going to be important for agencies to wait for women to say, ‘this is my limitation. This is the accommodation I need,’ versus forcing anything on pregnant women.”

Where did the PWFA come from?

The Pregnant Workers Fairness Act, which Sen. Bob Casey (D-Pa.) first introduced in 2012, was enacted a decade later as part of the fiscal 2023 omnibus spending package, after gaining bipartisan support.

The PWFA aims to close a gap among existing anti-discrimination laws. Specifically, the Pregnancy Discrimination Act of 1978 eventually led to the 2015 Supreme Court case of Young v. United Parcel Service. The Supreme Court issued a 6-3 decision, which said that employers had to provide reasonable accommodations for pregnant workers in the same manner they would accommodate other workers with impairments.

The decision was a step in the right direction, D’Agostino said, but many courts held that to claim a violation of the Pregnancy Discrimination Act, a pregnant worker had to show that the employer refused to provide them with the same accommodations that the employer provided to another worker with similar limitations.

The problem quickly became that in many situations, there wasn’t a previous instance of the employer providing accommodations to another employee for the pregnant worker to use as a basis for claiming a violation of the law.

“It only really worked there if you could point to somebody else who was getting accommodation who wasn’t pregnant,” Tejani said.

“It created a bit of chaos,” D’Agostino added. “Because there were so few circumstances where there was an ideal comparator, employers weren’t being required to provide accommodations to pregnant women. The Pregnant Workers Fairness Act makes it so that employers have to provide the reasonable accommodation even where there isn’t a comparator who’s similarly situated. Hopefully this will be a cleaner process.”

Unions including the American Federation of Government Employees have lauded the passage of the PWFA and said they look forward to its upcoming start date of June 27.

“This new law ensures that millions of pregnant workers, and those who have recently given birth, can protect their health without risking their paycheck,” AFGE National President Everett Kelley said in a statement in April. “It is a major milestone for gender, racial and economic justice across the country.”

Tejani added that “it’s a good thing for agencies to offer these accommodations anyway. These are things that allow pregnant workers, workers affected by childbirth, workers with related medical conditions, to stay on the job and to do their jobs well. The time and energy it takes to replace people is so high, that if you can do something like this for your workers, that’s a better thing for the agency, because you get to keep the talent and keep the expertise, and these workers get through their pregnancy or childbirth or related medical condition in a way that makes it easier for them to continue working.”

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