The PWFA protects employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions; it applies only to accommodations. Final rules implementing the PWFA became effective June 18, 2024. Employers with 15 or more employees are covered by the PWFA.

Existing laws that the Equal Employment Opportunity Commission (EEOC) enforces, such as the Pregnancy Discrimination Act make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions, but do not require accommodations.

Under the PWFA, limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make.

Related medical conditions must relate to pregnancy or childbirth of the specific individual. They can include lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome, sciatica, carpal tunnel syndrome, migraines, dehydration, anxiety, loss of balance, varicose veins, and menstruation, to name only some.

Note: Federal courts have enjoined the EEOC from enforcing the PWFA rules in relation to elective abortions for the state of Texas (state employers only), as well as employers in Mississippi and Louisiana.

Reasonable accommodations are changes to the work environment or the way things are usually done at work. Some examples of accommodating pregnancy, childbirth, or related medical conditions include:

• Permission to sit or drink water;
• Closer parking;
• Flexible hours;
• Appropriately sized uniforms and safety apparel;
• Additional break time to use the bathroom, eat, and rest;
• Leave or time off to recover from childbirth; and
• Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Qualified employees and applicants are entitled to receive accommodations. Employees or applicants can be “qualified” under the PWFA in two ways.

• First, an employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified.

“Essential functions” are the fundamental duties of the job. Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water.

• Second, if an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job as long as:
  • The inability is “temporary;”
  • The employee could perform the functions “in the near future;” and
  • The inability to perform the essential functions can be reasonably accommodated.

The determination of whether an employee can perform the functions in the near future is made on a case-by-case basis. If the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension. An accommodation can include the suspension of an essential function.

This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be entitled to such a change as a reasonable accommodation. Leave can also be a reasonable accommodation.

Employees must communicate that they have a limitation — a physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition — and that they need an adjustment or change in their working conditions due to the limitation. Employees don't have to use any particular words or forms.

Once employers know of such a limitation and accommodation need, they should engage in the “interactive process” with the employee or applicant. They should talk to the employee about the known limitation and the adjustment or change needed at work.

Since employees often tell their managers or supervisors about such accommodation needs, managers and supervisors should be trained in how to recognize such requests and how to respond.

Employers must provide the following accommodations without delay or documentation:

• Carrying or keeping water near and drinking, as needed;
• Allowing additional restroom breaks, as needed;
• Allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and
• Allowing breaks to eat and drink, as needed.

These are a small set of simple, inexpensive, commonly sought accommodations that are widely known to be needed during an uncomplicated pregnancy, and where documentation would not be easily obtained or necessary. These will not pose an undue hardship.

For other accommodation requests, employers may ask for supporting documentation only when reasonable and when the condition or accommodation need is not obvious.

Documentation is not reasonable if:

• The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.
• The employer already knows about the limitation and the adjustment or change at work due to the limitation. If, for example, the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, the employer cannot demand a new doctor’s note every time the employee uses the accommodation of coming in later.
• 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.
• The employee is lactating and needs modifications to pump at work or nurse during work hours.
• The employer would not ask an employee for documentation in that situation normally. If an employer’s policy is that employees only need a note from a health care provider for absences if they are missing three or more days in a row, the employer can’t require someone who needs a reasonable accommodation of one day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.

When employers are allowed to get documentation from a health care provider, they are limited to documentation that:

• Explains the health care provider’s qualifications and why they can provide the necessary information for this patient. A brief statement is sufficient. The provider does not need to be treating the condition at issue, as long are they are familiar enough with the patient’s circumstances to provide appropriate information.
  • Under the PWFA, health care professionals include, but are not limited to: doctors, nurses, nurse practitioners, physician assistants, midwives, physical therapists, and licensed mental health professionals. The health care provider may be a telehealth provider.
• Confirms that the employee has a physical or mental condition. Because the PWFA covers a wide range of physical or mental conditions, the provider does not need to include a diagnosis; a simple statement of the employee's physical or mental condition is sufficient. The problem or impairment may be minor, modest, or episodic (like fatigue, vomiting, or swelling, need for rest,); a need to attend health care appointments; or maintaining the patient’s health or the health of their pregnancy (like avoiding extreme heat, lifting restriction, or limiting exposure to chemicals).
• Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition.
• Describes the adjustment or change that is needed at work due to the limitation, including the expected duration of the accommodation. For example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time. If the change is the temporary suspension of a main job duty, it should make clear that the suspension will be temporary and that the employee could perform the job duty after the pregnancy or in the near future (and include an estimate of when that will be).

Employers should avoid using forms like FMLA certification forms or ADA forms to gather documentation, as they tend to ask for more information than needed. Whatever forms are used, employers should be prepared to have health care providers indicate that some entries or entries are not applicable.

Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.

Employers may not:

• Require an employee to accept an accommodation without a discussion with the employee about the accommodation (the interactive process),
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation,
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working,
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation), or
• Interfere with any individual’s rights under the PWFA.