On December 22, 2022, the U.S. Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the Consolidated Appropriations Act. President Biden signed the bill into law one week later. The PWFA goes into effect on June 27, 2023.
The PWFA will be enforced by the Equal Employment Opportunity Commission (EEOC) and seeks to eliminate discrimination and promote women’s health and economic security by requiring covered employers to provide “reasonable accommodations” to a worker’s “known limitations” related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an “undue hardship.” Generally, employers (with 15 or more employees) who are subject to Title VII of the Civil Rights Act of 1964 (Title VII) and their employees and applicants are covered by the PWFA.
The PWFA applies only to accommodations. Specifically, the PWFA requires covered employers to (1) accommodate all pregnancy-or childbirth-related medical conditions or known limitations (i.e., physical or mental conditions and not just those that qualify as disabilities under the ADA); (2) work with pregnant employees to determine a reasonable accommodation for a pregnancy-related medical condition, with leave as a last-resort accommodation; and (3) accommodate pregnant employees even when they temporarily cannot perform essential functions of their jobs.

Under the PWFA, covered employers cannot:

• Require an employee to take leave if a reasonable accommodation can be provided that would let the employee keep working;
• Require an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
• 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.

The PWFA clarifies that an employee (or applicant) shall be considered “qualified” even if they are unable to perform essential functions of the job if:

• Such inability is temporary;
• The essential function could be performed in the near future; and
• The inability can be reasonably accommodated.

For the purposes of the PWFA, reasonable accommodations are analyzed the same as under the ADA, including the definition of undue hardship. Examples of reasonable accommodations include the ability to sit or drink water; receiving closer parking; having flexible hours; receiving appropriately sized uniforms and safety apparel; receiving additional break time to use the bathroom, eat, and rest; taking 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.

The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. For example, more than 30 states and cities have laws that provide accommodations for pregnant workers. Federal laws include Title VII, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). Under Hawaii law, it is an unlawful discriminatory practice for an employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment because of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes. Hawaii law requires employers to provide women affected by disability due to pregnancy, childbirth, or related medical conditions reasonable accommodations and/or leave for a reasonable period of time (what’s “reasonable” is determined by a physician). Haw. Code R. §§ 12-46-107-108; Sam Teague, Ltd. v. Hawaii Civil Rights Commission, 89 Hawaii 269 (1999). These requirements are enforced by the Hawaii Civil Rights Commission.