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Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and requires employers to provide reasonable accommodations to qualified applicants and employees for known conditions and limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions during all stages of employment, unless doing so will cause an undue hardship.  The PWFA prohibits employers from discriminating or retaliating against employees and job applicants based on their need for a reasonable accommodation. 

The law protects full time, part time, and contract/contingent employees.  Unlike the Family and Medical Leave Act (FMLA) or Parental Leave, there is no waiting period for eligibility or hours worked requirement. 

Requesting an Accommodation

Employees can request verbally or in writing by:

  • Send an email request to umdleave@umd.edu;
  • Contact any UHR Leave Management team member directly using their consultation appointment scheduling, email or phone as outlined on the website; or 
  • Inform their immediate supervisor or departmental HR representative who will work with UHR Leave Management regarding next steps

Upon an employee disclosing that they have limitations and need a workplace adjustment/accommodation for a physical or mental condition related to pregnancy, childbirth, or related medical condition, Leave Management will provide next steps.

Documentation

Medical documentation that confirms: 

  • The physical/mental condition underlying the employee’s limitation
  • Confirmation that it is related to, affected by, or arises out of pregnancy, childbirth, or related condition(s)
  • Indicates the requested change or adjustment is needed due to the limitation.

Medical documentation never has to be provided directly to the department.  It also does not have to be provided for a lactation accommodation at work or for any of the following “predictable assessments”:

  • Allowing an employee to carry or keep water and drink, as needed, in or nearby the employee’s work area
  • Allowing an employee to take additional restroom breaks, as needed
  • Allowing an employee whose work requires standing to sit, and vice versa, as needed
  • Allowing an employee to take breaks, as needed, to eat and drink 

FAQs

Under ADA, a qualified applicant/employee is someone who can perform the essential functions of their job with or without an accommodation. Under PWFA, an employee is considered “qualified” even if they are unable to perform an essential function for a “temporary period” so long as it can be performed “in the near future” and the inability to perform the essential function can be reasonably accommodated.

Known means a request has been communicated by the employee/applicant or their representative or of which the employer should be aware given the circumstances.  A limitation can be physical and/or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. 

This expansive definition covers current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), contraception, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having/choosing not to have an abortion, chronic migraines, gestational diabetes, morning sickness, etc.  Also includes pre existing conditions that are exacerbated by pregnancy or childbirth.

Temporary or “in the near future” is determined by the length of time an employee is unable to perform the essential function as well as:

  • Whether the temporary inability can be accommodated (i.e., is there other work the employee can accomplish).
  • The nature of the essential functions including its frequency.
  • Whether or not there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function.
  • Whether the essential function can be postponed or remain unperformed for any length of time and, if so, for how long.
  • Current pregnancy - 40 weeks from the start of the temporary suspension of the essential function.  Leave does not count toward the 40-week count (Clock restarts when employee returns to work).
  • Conditions arising after birth do not have the 40-week rule, and are determined on a case-by-case basis.  Must reassess ability to accommodate upon return to work regardless of whether the employee received the same or different accommodation either prior to or during pregnancy.
     

This is not an all-inclusive list, but all of this and more is on the table for discussion at any point during the interactive process.

  • Modified, light, or alternative duty
  • Additional, longer, or more flexible breaks for restroom, or to drink water, eat, or rest
  • Adjustments to food or drink policies to allow the employee to have water or food during working hours
  • Making existing facilities easier to use, such as modifying parking, changing a workspace and placing it closer to a door or restroom
  • Potential modifications to dress code for more comfortable attire
  • Modified work schedules, such as fewer working hours, or a modified start or departure time to accommodate morning sickness/nausea/fatigue
  • Breaks and private space for lactation needs (and don’t forget the PUMP Act!)
  • Flexible scheduling for doctor’s appointments (pre- and post-delivery)
  • Temporary remote work for positions which can be performed remotely
  • Leave for bedrest prior to delivery, recovery from childbirth, or other postpartum needs
     

The key difference is the PWFA deems an individual impaired by pregnancy, childbirth, or related medical conditions qualified and entitled to reasonable accommodation without the scrutiny the ADA typically places on an employee’s ability to perform job functions.  Other differences are indicated below:

  • An expedient, simplified interactive process
  • Covering conditions that are minor or episodic, and may not reach the same severity level as a disability
  • An expansive view of pregnancy-related conditions, that can include attempts to become pregnant, pregnancy termination, menstruation, effects of birth control
  • The temporary suspension of essential job functions for up to 40 weeks
  • Leave should be the very last resort and may be a violation of PWFA. Cannot require an employee to take leave (paid or unpaid) if another accommodation is available
  • No medical documentation is needed if the need for accommodation is obvious, the employer has the information needed, the request is for one of the “predictable assessments”, or the request is for a lactation accommodation
     

A reasonable accommodation is not required if doing so would impose an undue hardship on the employer’s business operations.  Factors to think of are similar to the ADA:

  • Nature and net cost of accommodation
  • Total UMD Financial resources (not just the department)
  • Number of employees
  • Number, type, and location of the employer’s facilities
  • Employer’s operation (composition, structure, functions, geographic separateness, and administrative/fiscal relationship of facility)
     
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