What to Expect When Your Employee is Expecting Under the Pregnant Workers Fairness Act

By and
February 7, 2025

For many years, employers have been operating within the confines of the Americans with Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), and the Wisconsin Fair Employment Act (“WFEA”) when a pregnant employee needs time off or an accommodation. Now employers have a new law to consider, and one that is arguably more favorable to the employee: the Pregnant Workers Fairness Act (“PWFA”).

The PWFA went into effect on June 27, 2023, and requires any employer with 15 or more employees to provide reasonable accommodations for employees facing limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the business. The PWFA’s focus on pregnancy and related conditions by its nature focuses on short-term limitations, and the limitations an employee may face do not need to rise to the level of a disability to be entitled to accommodation under the PWFA.

An example of a type of accommodation covered by the PWFA would be allowing an employee to sit more frequently while at work for the duration of the pregnancy. Other examples include providing parking relatively close to the workplace, allowing pregnant employees to have additional break time to use the bathroom, eat, or rest, or allowing for a later arrival time due to morning sickness.

Components of the PWFA may sound familiar. However, the PWFA aims to fill in gaps for pregnant employees seeking accommodations that aren’t covered under pre-existing federal and state laws like the ADA, FMLA, and WFEA. By highlighting the differences between the PWFA and each of these laws, we can better understand the additional requirements the PWFA imposes on employers.

The PWFA & Disability Accommodations
The ADA protects a qualified individual with a disability, which is a person who has a physical or mental impairment that substantially limits a major life activity. Although the protections under the ADA apply to a significantly broader group of individuals than the PWFA, the ADA historically has been more limited in scope when it comes to pregnancy and pregnancy-related conditions. Under the ADA, pregnancy is not a disability and is not covered unless there are additional related conditions that rise to the level of a disability.

Like the ADA, the WFEA is focused on accommodations for a broader group of employees. The WFEA requires employers to accommodate individuals who have an impairment that makes achievement unusually difficult or limits their capacity to work but are still qualified and able to perform the essential functions of a job with or without an accommodation. This group, covered under the WFEA, is broader than the ADA and arguably could more easily include pregnancy-related conditions, but it likely does not include every pregnancy-related limitation that may occur.

The PWFA has removed the void for pregnant employees that existed under the ADA and the WFEA.

Employers engaging in the interactive process under the PWFA must proceed with caution, as the process has some stark differences from what we are used to under the ADA and the WFEA. For example, one hallmark of the ADA and the WFEA is that an employer is never required to remove an essential function of a job as accommodation. However, under the PWFA, because of the temporary nature of the conditions, the PWFA may require an employer to eliminate an essential function of the job as an accommodation so long as it is (1) temporary and (2) the employee is expected to be able to do that essential function again “in the near future.”

Another important difference between the PWFA and the ADA and WFEA is when the employer can request medical documentation. The PWFA specifically provides that there are many situations in which an employer should engage in the accommodation process without requesting medical documentation. The PWFA further identifies a self-confirmation process where the employee’s statement about limitations and accommodation is all that may be required in some instances. Contrary to the ADA, where the employer has a right to receive medical documentation during the interactive process to help identify the proper accommodation, employers should not jump straight to requiring medical documentation under the PWFA.

As a crucial reminder, the PWFA and the ADA have the same eligibility requirements for an organization to be covered by the laws. However, the WFEA applies to any employer in Wisconsin who has one or more employees. So, even if the PWFA does not apply, a pregnant employee may require accommodation under the WFEA.

The PWFA & The FMLA
The FMLA provides eligible employees with the ability to take job-protected unpaid leave for up to 12 weeks. This leave can be used for an employee’s own serious health condition, which could include health conditions arising out of pregnancy and childbirth, and to care for a newborn child. The FMLA does not entitle employees to any workplace accommodations; it is strictly focused on providing employees with protected time off.

Although employees may be eligible for FMLA, an employer should proceed with caution before putting a pregnant employee on a leave of absence. The PWFA’s primary focus is on providing accommodations that enable pregnant employees to continue to perform their jobs, and it is a violation of the PWFA to require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. That doesn’t mean that leave is never a reasonable accommodation under the PWFA, as employees may be entitled to leave for health care appointments or leave to recover from childbirth or other medical conditions. But employers should proceed with caution when evaluating leave for a pregnant employee.

Key Takeaways
The PWFA requires employers to be significantly more flexible with their pregnant employees compared to other federal and state accommodation and leave laws. A request for accommodation does not have to be formal, and employers should be prepared to quickly accommodate a reasonable request. If an employer feels the requested accommodation may be too burdensome and requests an alternative, the employee should still be afforded the accommodation in the meantime while the interactive process takes place.

The PWFA is just one of multiple laws that provide protections to pregnant employees and birthing employees, as the PUMP Act has also expanded protections for nursing employees in the workplace and requires employers to provide breaks to express breast milk.

Employers with questions about navigating the complex web of leave and accommodations laws should not hesitate to consult their trusted employment attorney.

© 2025 The Business News. Northcentral and Westcentral editions. Reprinted with permission.

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