Women in Construction: How the Pregnant Workers Fairness Act Changes the Playing Field

By: Jonathan Landesman and Aislinn Sroczynski

The percentage of women working in the construction industry is at an all-time high and continues to grow each year. But during the pandemic, women left the workforce at higher rates than men due in part to increased caregiving duties. Now, a new law has been enacted that expands protections for working mothers to receive accommodations from their employers for pregnancy-related medical conditions, which can include everything from pregnancy to childbirth to postpartum recovery.

The Pregnancy Workers Fairness Act (PWFA), which took effect this past June, requires “covered employers” to provide “reasonable accommodations” for their pregnant employees unless the accommodation would cause the employer an undue hardship. This new law applies to employers with 15 or more employees and is enforced by the Equal Employment Opportunity Commission (EEOC).

How is the PWFA different from other federal laws already in place?

Pregnancy discrimination is already prohibited under the Pregnancy Discrimination Act of 1978 (PDA), and employers are already required to provide reasonable accommodations to employees with certain conditions related to pregnancy under the Americans with Disabilities Act (ADA). However, under the PDA, employees were only entitled to the same reasonable accommodation(s) that would have been provided to others with a non-pregnancy-related impairment. Moreover, under the ADA, pregnancy itself is not a disability, and only some pregnancy-related conditions meet the ADA’s definition of “disability.” The PWFA provides clarity and helps fill in some gaps left by the PDA and ADA. Although the PWFA borrows from existing laws, it imposes unique obligations on employers, who will bear the burden of establishing undue hardship.

The PWFA only applies to accommodations and does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. Today, more than 30 states and some cities already have laws that provide accommodations for pregnant workers.

Who does the PWFA protect?

The PWFA protects employees and applicants of covered employers with known limitations related to pregnancy, childbirth, or related medical conditions.

What are some examples of reasonable accommodations?

“Reasonable accommodations” are changes to the work environment or how things are usually done. The PWFA intentionally left “reasonable accommodations” vaguely defined since every job and every pregnancy is different and must be determined on a case-by-case basis. Instead, it leaves the conversation up to employers and employees and requires the employer to meet with employees and engage in a good-faith interactive process.

The Congressional Committee Report that accompanied the PWFA included the following examples as reasonable accommodations but are by no means the only possible accommodations to consider:

• Allowing workers to sit or drink water;
• Providing closer parking spaces;
• Offering flexible working hours;
• Providing time off to recover from childbirth;
• Providing appropriately sized uniforms and safety apparel;
• Allowing workers additional break time to use the bathroom, eat, rest; and
• Excusing workers from strenuous activities or activities that involve exposure to compounds is not safe for pregnant women.

What does the PWFA prohibit?

Examples of prohibited conduct include:

• Requiring an employee to accept an accommodation without engaging in a good faith discussion about the accommodation (known as the “interactive process”);
• Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
• Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); and
• Interfering with an individual’s rights under the PWFA.

Can an employer request documentation from an employee to assess a requested accommodation?

The EEOC has provided guidance on this issue, stating that employers can sometimes ask for medical documentation to support an accommodation request. The EEOC anticipates that employers can navigate many accommodation requests without needing medical or other supporting documentation. Employers may only request supporting documentation if it is reasonable for the employer to determine whether to grant the accommodation, and any documentation requested must be reasonable.

The proposed regulations include several examples of when it would not be reasonable to request documentation:

• When both the limitation and the need for reasonable accommodation are obvious;
• When the employee or applicant has already provided sufficient information, g., the employee has already provided a medical note imposing lifting restrictions for a specific time period;
• When an employee states or confirms they are pregnant and requests a common accommodation (such as drinking water as needed, additional restroom breaks, requests to sit or stand while working, breaks, as needed, to eat and drink); and
• When the limitation is lactation or pumping.

When may an employer deny an accommodation?

Similar to the ADA, employers may deny a request for a reasonable accommodation if it would impose an “undue hardship” on their business operations. Undue hardship is an accommodation action that causes substantial difficulty or expense to the employer when assessed in light of different factors. Because several factors are considered in making such a determination, it is analyzed on a case-by-case basis. Proving undue hardship requires an employer to show the cost or disturbance surrounding implementing an accommodation beyond hypothetical concerns. This places the burden on employers to establish undue hardship, which is a difficult defense for employers to establish in many cases.

How does the PWFA affect the construction industry?

The number of women in construction has been on the rise since 2016, and the Bureau of Labor Statistics reported that approximately 14% of construction workers in 2022 identified as female—most of whom are of childbearing age. Construction work often carries with it physical demands that may make it more difficult for pregnant women to continue working. Such demands include heavy lifting, climbing, standing, stooping, or bending for long periods of time, working in confined spaces, and performing tasks involving balance. Additionally, construction work may involve exposure to chemicals and physical and biological agents that can cause either reproductive impairment or adverse developmental effects on a child.

Contractors and subcontractors must be cognizant of these workplace conditions and provide accommodations in accordance with the PWFA to avoid exposure to potential liability.

What should employers do to comply with the PWFA?

All employers, including those that already offer protections due to a state or local law or as part of a more generous policy, should use this as an opportunity to review company policies and practices to ensure compliance with the PWFA.

Employers should expand their accommodations review process to include requests related to pregnancy, childbirth, and related medical conditions. Employers are required to engage in the interactive process with those employees and applicants seeking accommodations. Employers should also review any written policies and practices to incorporate the obligations set forth by the PWFA. Employees must be informed of any new policies and should sign an acknowledgment that they received and reviewed the policies.

Employers should also train any employees who will be implementing any new policies and any supervisors who will be involved in making any accommodation decisions. Annual trainings on laws such as the PWFA may be necessary.

Since the PWFA is a new law, it is important to stay up-to-date on any developments. With the EEOC’s release of its proposed regulations, there will likely be more guidance and requirements regarding employer implementation of the law within the next year. Employers may want to work closely with counsel to review any regulations and to update any pregnancy accommodation policies and related forms.