PWFA Requirements Extend Beyond the ADA’s and FMLA’s Mandates

While there is some overlap among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), and Pregnant Workers Fairness Act (PWFA), the PWFA goes beyond the ADA and the FMLA in many ways.

The PWFA “imposes distinct obligations on employers to reasonably accommodate pregnant and postpartum employees and applicants,” said Alex Barnett, an attorney with Alston & Bird in Atlanta. 

“Employees who might not qualify for a reasonable accommodation under the ADA may be entitled to one under the PWFA,” she said. “Likewise, employees who are ineligible for FMLA leave could still be qualified to receive leave as a reasonable accommodation under the PWFA.”

Even if the employer is not covered by the FMLA, leave may be required by the PWFA, added Clara “C.B.” Burns, an attorney with Kemp Smith in El Paso, Texas.

Toolkit: Navigating the FMLA

Leave is an accommodation that may be reasonable and appropriate under the PWFA, but the PWFA regulations provide that leave cannot be required if there is another reasonable accommodation that would allow a pregnant employee or a nursing mother to remain working, Burns said.

“HR professionals need to ensure that they are involved in — and documenting — the accommodation process so that front-line supervisors are not rejecting accommodation requests without knowledge of legal requirements,” she cautioned.

Broader Protections

The PWFA provides broader protections than the ADA, Burns said.

For example, under the ADA, an employer does not have an obligation to eliminate or reduce essential functions as an accommodation. Under the PWFA, an employer may be required to suspend essential functions for a limited time as an accommodation, she noted.

“Unlike the ADA, an employee or applicant is still deemed qualified under the PWFA if, for a temporary period, they are unable to perform an essential function of their job, provided that they could perform it in the near future and their inability to perform the essential function can be reasonably accommodated,” Barnett said.

Toolkit: Managing Disability Accommodations

For example, if a pregnant worker’s position requires that she lift 25 pounds regularly without assistance, under the ADA, the employer would not be required to eliminate that function if it is an essential function of the position, Burns said. 

Under the PWFA, temporary suspension of essential functions can be a required reasonable accommodation; therefore, the employer would need to consider a temporary suspension of that essential function as an accommodation.

The PWFA goes beyond the reasonable accommodation requirement under the ADA, which requires accommodation if an employee has a pregnancy-related condition only if that condition qualifies as a disability, Barnett said.

“Under the ADA framework, for example, employers generally were not required to accommodate pregnancy-related conditions like morning sickness and nausea, sciatica, and frequent urination because they did not amount to an independent disability,” she said.

By contrast, the PWFA requires employers provide reasonable accommodations for these more “minor, modest, or episodic” conditions associated with pregnancy, absent undue hardship, she explained.

PWFA accommodations can include additional, longer, or more frequent breaks, modifications to the workstation such as a chair to sit on, modifications to uniforms or dress codes, remote work, light duty, or leave for medical appointments or following birth, Barnett said.

Other accommodations that might be appropriate under the PWFA for nursing mothers include allowing a nursing mother to keep a water bottle or food at her workstation to support milk production, Burns said.

PUMP Act and PWFA Coverage 

The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires an employer to provide reasonable break time to express breast milk, and access to a private space for purposes of expressing milk.

The law, which was enacted in December 2022, amended the Fair Labor Standards Act (FLSA), affording additional rights to nursing employees, including requiring that both exempt and nonexempt nursing employees receive reasonable break time and private space to pump breast milk at work, Barnett noted. The law applies up to one year after the birth of the worker’s child.

“The PWFA also requires employers to make nursing-related accommodations like time and space to pump breast milk or nurse during the workday,” she said.

The PWFA applies to employers with 15 or more employees. The PUMP Act applies to employers covered by the FLSA, which includes most private and public employers. Employers with fewer than 50 employees may be exempt from the PUMP Act’s break-time and space requirements only if they can show that compliance would impose an undue hardship.