Pregnancy accommodations at work under the PWFA

What is the Pregnant Workers Fairness Act?

The Pregnant Workers Fairness Act (PWFA) is a federal law, enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC's guide to the law sums it up: "Generally, the Pregnant Workers Fairness Act (PWFA) requires a covered employer to provide a 'reasonable accommodation' to a qualified employee's or applicant's known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an 'undue hardship.'"

The PWFA went into effect on June 27, 2023, and covers employers with 15 or more employees. Under 42 U.S.C. 2000gg-1(1), undue hardship is the employer's to show: the duty holds "unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity". A state law that protects more still applies.

What counts as a pregnancy-related limitation?

A pregnancy-related limitation does not have to be a disability under the Americans with Disabilities Act (ADA). Under 42 U.S.C. 2000gg(4), a known limitation is a "physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether or not such condition meets the definition of disability".

The EEOC adds that a limitation "can be a modest or minor impediment or problem and does not need to be a medical diagnosis".

What accommodations can you ask for?

The EEOC's list opens: "Some examples of possible reasonable accommodations under the PWFA include:"

• 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.

For a pregnancy-related limitation, the PWFA can allow an essential function to be suspended temporarily. Under 42 U.S.C. 2000gg(6), an employee "shall be considered qualified" even if unable to perform an essential function "for a temporary period", as long as the function "could be performed in the near future" and the inability "can be reasonably accommodated".

Under 42 U.S.C. 2000gg(7), "undue hardship" means what it means under the ADA. The EEOC defines it as "significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation."

How do you ask for a pregnancy accommodation?

In the EEOC's words, "Workers do not need to use specific words to request an accommodation to begin the interactive process." Someone else can raise it for you, too. "Under the PWFA, 'known' means the employee or the employee's representative (or the applicant or the applicant's representative) has communicated to the employer about the limitation."

Once your employer knows, the EEOC says it "should engage in the 'interactive process' with the employee or applicant." That process "means simply that the employer and employee communicate, whether by talking or some other way, about the known limitation."

A written record of what you asked for, and when, is useful evidence if things stall. Our guide to requesting a reasonable accommodation covers how a request works under the ADA.

Do you need a doctor's note for a pregnancy accommodation?

The EEOC says, "In many instances under the PWFA, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed." Under the EEOC's regulation, in effect since June 18, 2024, an employer may seek supporting documentation "only when it is reasonable under the circumstances" (29 CFR 1636.3(l)(1)).

The EEOC's examples of when asking for documentation is not reasonable include:

• The limitation and need for an adjustment or change at work due to the limitation is obvious.
• The employer already knows about the limitation and the adjustment or change at work due to the limitation.
• The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing.

Under 29 CFR 1636.3(l)(1), the first and third examples also need the employee's own confirmation of the limitation and the change needed. The regulation calls it "self-confirmation": "a simple statement" that "can be made in any manner".

When documentation is reasonable, it is still limited. Under 29 CFR 1636.3(l)(2), reasonable documentation is "the minimum that is sufficient to":

• Confirm the physical or mental condition;
• Confirm that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and
• Describe the adjustment or change at work that is needed due to the limitation.

The same paragraph adds, "Covered entities may not require that supporting documentation be submitted on a specific form."

Under 29 CFR 1636.3(l)(3), "The covered entity may not require that the health care provider submitting documentation be the provider treating the condition at issue." The EEOC's guide adds, "An employer may not require that the employee seeking the accommodation be examined by a health care provider selected by the employer."

Your own provider can write the documentation. Certicare is a telehealth service where leave and accommodation paperwork is completed and signed by a state-licensed provider after an evaluation. If your employer asks for documentation of a pregnancy-related limitation, a provider can complete the paperwork or letter it requested, where the evaluation supports it. There's usually no appointment, and a provider may follow up for more detail before deciding. Turnaround is usually within 24 hours after we have everything needed. For what that paperwork covers when Certicare completes it, see workplace accommodation forms.

Completing our intake form starts the review; it does not guarantee a signature, and if the review does not support your request you are refunded in full. Whether the accommodation goes ahead is your employer's decision.

Can your employer make you take leave?

An employer can't force you onto leave under the PWFA if a different accommodation would let you keep working. Under 42 U.S.C. 2000gg-1(4), it is unlawful to "require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided".

Asking for leave is a different matter. In the EEOC's guide, "Leave can be a reasonable accommodation that an employee requests under the PWFA."

Pay is its own question, covered in our guide to short-term disability for pregnancy. The Family and Medical Leave Act (FMLA) is a separate law, and our comparison guide shows how the FMLA fits in.

What if your employer says no?

If the reason given is undue hardship, that is the employer's to demonstrate, under 42 U.S.C. 2000gg-1(1). If no change fits, our guide covers when an employer can't accommodate restrictions.

Under 42 U.S.C. 2000gg-1(5), it is unlawful to "take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation". A separate section, 42 U.S.C. 2000gg-2(f)(1), also protects an employee who "opposed any act or practice made unlawful by this chapter" or who "made a charge".

If you believe the denial was discrimination, the EEOC's time limits for filing a charge read: "In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis." Federal employees "generally must contact an agency EEO Counselor within 45 days."

You don't need to have the accommodation worked out before you start. Answer the intake questions, and a state-licensed provider completes and signs the paperwork your employer asked for, where the evaluation supports it.