Complying with PWFA vs. FMLA
Pregnancy-related workplace compliance has changed significantly with the introduction of the Pregnant Workers Fairness Act (PWFA). Employers are now managing two overlapping but very different requirements:
- FMLA (Family and Medical Leave Act) → governs leave and job protection
- PWFA (Pregnant Workers Fairness Act) → governs reasonable accommodations
Understanding how these laws interact is essential to staying compliant and supporting employees effectively.
What Is the FMLA?
The Family and Medical Leave Act (FMLA) is primarily focused on time away from work, providing eligible employees with:
- Up to 12 weeks of unpaid, job-protected leave
- Continued group health benefits during leave
- FMLA may cover:
- Prenatal care
- Pregnancy-related incapacity
- Childbirth recovery
- Bonding with a newborn
What Is the PWFA?
The Pregnant Workers Fairness Act (PWFA) is primarily focused on keeping employees working safely, by providing reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions—unless doing so creates undue hardship.
PWFA Examples of Accommodations:
- More frequent breaks
- Modified work schedules
- Temporary reassignment
- Light duty
- Remote work (when applicable)
Key Difference: Leave vs. Accommodation
This is where many employers get tripped up.
| FMLA | PWFA |
| Provides leave (time off work) | Provides accommodations (stay at work) |
| Applies only to eligible employees | Applies more broadly (no tenure |
| (Employee must have 12 months of service and worked 1,250 hours within the past year) | requirement, Employee does not need to meet any length of service requirement) |
| Has strict approval parameters | Focus on interactive process |
| Limited to 12 weeks | No specific time cap (depends on need) |
| Applies to Public Employers and those with 50+ full time employees within 75 miles | Applies to Employers with 15 or more employee |
Remember: An employee may qualify for PWFA accommodations even if they are not eligible for FMLA.
When Do Employers Use PWFA vs. FMLA?
Scenario 1: Employee Needs Breaks or Adjustments Due to Pregnancy
→ PWFA applies
Example: More frequent restroom breaks or modified schedule
Scenario 2: Employee Cannot Work Due to Condition
→ FMLA applies (if eligible)
Example: Bed rest or recovery after childbirth
Scenario 3: Employee Needs Reduced Schedule
→ Both may apply
PWFA: accommodation (reduced schedule)
FMLA: intermittent leave (tracking time off)
The Interactive Process: A Critical PWFA Requirement
Under PWFA, employers must engage in a timely, good-faith interactive process to determine appropriate accommodations. Denying accommodations without this process can create compliance risk.
This includes:
- Discussing the employee’s limitations
- Evaluating potential accommodations
- Documenting decisions
Common Employer Challenges
Managing PWFA and FMLA together introduces new complexity for HR teams and gaps can increase compliance risk and create employee dissatisfaction:
- Confusing when to apply leave vs. accommodations
- Failing to offer PWFA accommodations before moving to leave
- Mismanaging intermittent FMLA tracking
- Inconsistent documentation
- Overlapping compliance with ADA and state laws
Best Practices for HR and Employers
To stay compliant and reduce administrative burden:
• Train Managers to Recognize Triggers
Employees may not reference “PWFA” or “FMLA” specifically, Supervisors should escalate pregnancy-related requests early.
• Default to Accommodation First
Before placing someone on leave: Evaluate whether PWFA accommodations would allow them to continue working
• Coordinate Leave and Accommodations
Ensure HR teams track intermittent FMLA accurately & align accommodation plans with leave policies
• Standardize Documentation
Maintain consistent records for both laws and document the interactive process clearly
• Align with ADA and State Laws
Pregnancy-related conditions may also trigger ADA protections or state-specific accommodation or leave laws
Why This Matters More Than Ever
The introduction of PWFA has shifted expectations for employers. Where leave was once the default solution, employers are now expected to:
- Actively explore accommodations first
- Keep employees working whenever possible
- Document decisions carefully
Building a More Effective Approach
Managing pregnancy-related compliance is no longer just about approving leave—it’s about balancing:
- Accommodations (PWFA)
- Leave (FMLA)
- Disability considerations (ADA)
- State requirements
A structured, proactive approach helps reduce risk while improving the employee experience.
Need Help Navigating PWFA and FMLA?
Coordinating pregnancy-related accommodations and leave can quickly become complex, especially when multiple laws intersect.
Have questions about PWFA, FMLA, or how to structure your process? Connect with our team for guidance on building a compliant and streamlined approach.
