Making the Pregnant Workers Fairness Act More Inclusive

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (“PWFA”), the first federal law to provide meaningful protections for pregnant and postpartum employees.  The PWFA requires employers to engage in a good-faith interactive process to negotiate reasonable accommodations once they have notice of an employee’s need for accommodations.^[1]  On the same day, he also signed the PUMP Act, an amendment to the Fair Labor Standards Act (“FLSA”) that expanded legal protections for breastfeeding mothers, reflecting new legislative recognition of pregnant and postpartum women’s needs in the workplace.^[2]

The PWFA is intended to protect pregnant workers who lack coverage from Title VII and the ADA. While the Act marks significant progress for pregnant workers’ rights in the workplace, its effectiveness is limited by structural and social barriers.  Ensuring the PWFA is as protective as possible is important from a public health perspective.  While the PWFA is the first federal statute to enact meaningful change for pregnant women in the workplace, its implementation and scope can be improved.

Working mothers are stigmatized compared to men and childless women in the workforce.^[3]  Both mothers and women perceived as likely to have children often face reduced pay and a lower probability of being hired.^[4]  Women experience a reduction in their wages upon having children called the motherhood penalty; this penalty accounts for much of the wage gap between men and women.^[5]  Mothers are assumed to be less fit for leadership positions and less competent at their jobs. Stereotypes contribute to lower pay for mothers after childbirth and reflect the expectation that mothers will shoulder greater childcare and domestic labor at home, which employers assume detracts from their work performance.^[6] These types of assumptions about mothers as a group constitute normative discrimination.^[7] 

While stereotypes are harmful on their own, they stem from a general lack of accountability for maternal health in America.  Pregnant employees who need reasonable accommodations often do not request them to avoid negative career consequences due to the notion that the “ideal employee” has no children and the implicit bias that pregnant women are less valuable or competent workers.^[8]   Our laws do not sufficiently protect women’s health from pregnancy to postpartum.^[9]  Rates of childbirth mortality are higher in America than in any other high-income country, despite most cases being preventable.^[10]  Non-white women in the US are three times more likely to die during childbirth than white women.^[11]  In the workplace, these statistics matter. Working mothers’ health during pregnancy and postpartum influences their infants’ sickness and survival rates.^[12]  Considering the limitations of other relevant statutes like the FMLA which applies only to qualified workers, statutes like the PWFA that protect maternal health in the workplace should be strengthened such that women can access reasonable accommodations during pregnancy and postpartum within a quick timeframe, regardless of the size of their workplaces, and for the Act to address paid medical leave.

First, the PWFA has no time standards or penalties for employers who fail to respond promptly to requests for accommodations.^[13]  This allows employers to evade the interactive process in a manner that no longer makes the PWFA effective or able to addresses the time-sensitive needs of pregnancy: if the employer stalls long enough, the worker’s request may become irrelevant if she resigns due to a lack of accommodations or is no longer pregnant.^[14]  Reasonable accommodations around heavy lifting, schedule modifications, or seating are dependent on the woman’s physical condition.  Furthermore, the employee lacks timely recourse, as a filing with the EEOC typically takes ten months to resolve.^[15]  The PWFA should therefore set time standards for the interactive process and penalties on employers who unreasonably delay reasonable accommodations.

Second, the PWFA relies on employee disclosure to trigger the interactive process.^[16] Having a disability is still subject to social stigma.^[17]  Studies show that only 15% of employees who identify as disabled request accommodations for their disability.^[18]  While the PWFA does not require a showing of disability to trigger the interactive process, employees must contact their employer to request accommodations or give them notice of their pregnancy.  Instead of requiring employees to approach their employer about their condition,^[19] the PWFA should mandate that employers poll employees about their medical needs. The benefits conferred by the PWFA should not depend on whether an employee feels comfortable requesting them.  Thus, requiring employers to issue standardized questionnaires, written notices of rights, and employee training would help ensure that pregnant workers are aware of and able to access the statute’s intended protections.

Third, the scope of the statute should be expanded to include small businesses with fewer than fifteen employees.  Currently, workers are covered only if their workplace meets the fifteen-employee requirement, which derives from Title VII, leaving employees of small businesses outside the statute’s protections.^[20]  Many industries, such as agriculture, construction, legal services, accounting and tax preparation, food manufacturing, beauty salons, and nail salons, are composed of smaller businesses.^[21]  Pregnant workers in these workplaces face the same hardships as those in larger businesses, but are unable to secure accommodations because of the Act’s limitations.  Consequently, federal law leaves women working for small employers without federal protections, thereby imposing a burden to privately negotiate accommodations.^[22]  Expanding coverage would ensure protections are not contingent on employer size.

Fourth, the PWFA should address paid leave, in addition to reasonable accommodations. While accommodations such as modified duties or schedule changes are critical, they are unfeasible in situations where working during a pregnancy is medically unsafe or unsustainable.  Expanding the PWFA to include paid leave would protect mothers from either losing income or returning to work when it is medically unsafe.  Accommodation-based models assume uninterrupted labor force participation rather than allowing pregnant workers the option to take paid time off for medical reasons.  Providing paid leave would relieve women of the choice between their health and their income.

Title VII, the Americans with Disabilities Act, the Family and Medical Leave Act, the PUMP Act, and, most relevant here, the PWFA collectively represent progress in protecting pregnant and postpartum workers.  However, their effectiveness depends on structural and intersectional factors.  Employer size thresholds, eligibility requirements, and reliance on employee-initiated disclosure exclude many low-income women and women working in workplaces with fewer than fifteen employees or in physically demanding jobs where reasonable accommodations are not feasible.^[23]

The PWFA marks an important shift by separating pregnancy accommodations from disability status.  However, without enforceable time standards on the interactive process, expanded coverage to small businesses, and paid leave, federal protections will still fall short of reaching the most vulnerable employees.  Protecting pregnant and postpartum workers is not only a workplace issue, it is a public health concern with long-term consequences for maternal mental health, infant survival rates, and ultimately the health of the next generation.

^[1] 42 U.S.C. §§ 2000gg-2000gg-6 (2023).

^[2] Office of the Secretary News Release, Joint Statement by Acting Secretary of Labor Su, Equal Employment Opportunity Commission Chair Burrows on Anniversary of PWFA, PUMP Act, U.S. Dᴇᴘ’ᴛ Lᴀʙ. (Jan. 8, 2024), https://www.dol.gov/newsroom/releases/osec/osec20240108[https://perma.cc/94P6-WL7J].

^[3] Ana Júlia Calegari Torres et al., The Impact of Motherhood on Women’s Career Progression: A Scoping Review of Evidence-Based Interventions, 14 Bᴇʜᴀᴠ. Sᴄɪ. 275, 275-77 (2024); Elizabeth A. Hoffman, Taxation, Lactation, and Validation: The Symbolic Power of Tax Law to Legitimize Breast Milk Expression, 49 L. & Sᴏᴄ. Iɴᴏ̨. 1327, 1330 (2024).

^[4] Caraline Rickard, Getting Off the Mommy Track: An International Model Law Solution to the Global Maternity Discrimination Crisis, 47 Vᴀɴ. J. Tʀᴀɴs. L. 1465, 1468 (2021).

^[5] Shelley J. Correll, Stephen Benard, & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112(5) Aᴍ. J. Sᴏᴄ. 1297-1338, 1297-8 (2007).

^[6] Torres et al., supra note 3 at 275.

^[7] Stephen Benard and Shelley J. Correll, Normative Discrimination and the Motherhood Penalty, 24(5) Gᴇɴᴅᴇʀ & Sᴏᴄ. 616-46, 616-7 (2010).

^[8] Kimberly T. Schneider, Sarah C. Williams & Rory E. Kuhn, Workplace Discrimination Against Pregnant and Postpartum Employees: Links to Well-Being, 22, 8 Iɴᴛ. J. Eɴᴠ’ᴛ. Rᴇs. Pᴜʙ. Hᴇᴀʟᴛʜ 1160, 1163(2025).

^[9] Asia Evans, More Money, More Problems: Why H.R. 1318 is an Insufficient Fix to Remedy the Maternal Mortality Crisis, 16 Fʟᴀ. A&M U. L. Rᴇᴠ. 67, 68 (2022).

^[10] Munira Z. Gunja, Evan D. Gumas, Relebohile Masitha & Laurie C. Zephyrin, Insights into the U.S. Maternal Mortality Crisis: An International Comparison, Cᴏᴍᴍᴏɴᴡᴇᴀʟᴛʜ Fᴜɴᴅ (June 4, 2024), https://www.commonwealthfund.org/publications/issue-briefs/2024/jun/insights-us-maternal-mortality-crisis-international-comparison [https://perma.cc/7LCN-CAQE].

^[11] Latoya Hill, Alisha Rao, Samantha Artiga, & Usha Ranji, Racial Disparities in Maternal and Infant Health: Current Status and Key Issues, KFF (Dec. 3, 2025), https://www.kff.org/racial-equity-and-health-policy/racial-disparities-in-maternal-and-infant-health-current-status-and-key-issues [https://perma.cc/NE29-24ML].

^[12] Deborah Widiss, The Federal Pregnant Workers Fairness Act: Statutory Requirements, Regulations, and Need (Especially in Post-Dobbs America), 84 Employee Rᴛs. & Eᴍᴘ. Pᴏʟ’ʏ J. 83, 132 (2024).

^[13] 42 U.S.C. §§ 2000gg-2000gg-6.

^[14] EEOC Charge Filed on Behalf of Kennisha, A Pregnant Former Sonic Employee from Ohio, A Bᴇᴛᴛᴇʀ Bᴀʟᴀɴᴄᴇ (last updated Jan. 26, 2026)https://www.abetterbalance.org/resources/eeoc-charge-filed-on-behalf-of-kennisha-a-pregnant-former-sonic-employee-from-ohio/[https://perma.cc/Q5UH-EBM4].

^[15] What You Can Expect After You File a Charge, EEOC, https://www.eeoc.gov/what-you-can-expect-after-you-file-charge [https://perma.cc/32QQ-K7H3].

^[16] 42 U.S.C. §§ 2000gg(7)-2000gg-1(2).

^[17] Jenna A. Harder, Victor N. Keller & William J. Chopik, Demographic, Experiential, and Temporal Variation in Ableism, 75(3) J. Sᴏᴄ. Issᴜᴇs 683, 683-5 (2019).

^[18] Heidi H. Liu, The Proactive Process: An Empirical Study of Disparities in Workplace Accommodations, 56 Aʀɪᴢ. Sᴛ. L.J. 225, 230 (2024).

^[19] Terri R. Kurtzberg & Mason Ameri, Research: The Stigma Disabled People Face During Negotiation, Hᴀʀᴠ. Bᴜs. Rᴇᴠ.(Nov. 18, 2024), https://hbr.org/2024/11/research-the-stigma-disabled-people-face-during-negotiations# [https://perma.cc/HKN3-MYXZ]; Mairead Eastin Moloney, Robyn Lewis, Gabriele Ciciurkaite & Susan M Foley,“Going the Extra Mile”: Disclosure, Accommodation, and Stigma Management among Working Women with Disabilities, 40, 8 Dᴇᴠɪᴀɴᴛ Bᴇʜᴀᴠ. 942-956 (2018).

^[20] 42 U.S.C. §§ 2000gg(2)(B)(i).

^[21] The Number of Firms and Establishments, Employment, Annual Payroll, and Receipts by State, Industry, and Enterprise Employment Size: 2022, U.S. Cᴇɴsᴜs Bᴜʀᴇᴀᴜ (Apr. 2025), https://www.census.gov/data/tables/2022/econ/susb/2022-susb-annual.html [https://perma.cc/LKN5-UHDZ].

^[22] 42 U.S.C. §§ 2000gg(2)(B)(i).

^[23] 42 U.S.C. §§ 2000gg(2)(B)(i)-(iv); 2000gg(3)(A)-(E).