Pregnant employees have the right to a wide range of accommodations under new federal regulations for enforcing the Pregnant Workers Fairness Act that supporters say could change workplace culture for millions of people.
The Equal Employment Opportunity Commission, the agency in charge of enforcing the law, adopted an expansive view of conditions related to pregnancy and childbirth in its proposed regulations, including a controversial decision to include abortion, fertility treatment and birth control as medical issues requiring job protections.
The rules, which were adopted on a 3-2 vote along partisan lines, were published Monday and offer extensive guidelines for addressing more routine difficulties of pregnancy, such as morning sickness, back pain and needing to avoid heavy lifting. Labor advocates say the law will be especially transformative for pregnant women in low-wage jobs, who are often denied simple requests like more bathroom breaks.
Here’s what to know about the law and the EEOC regulations.
WHAT IS THE PREGNANT WORKERS FAIRNESS ACT?
Congress passed the law with bipartisan support in December 2022 following a decade-long campaign by women’s rights and labor advocates, who argued that the 1978 Pregnancy Discrimination Act did little to guarantee women would receive the accommodations they might need at work.
The law stated only that pregnant workers should be treated the same as other employees, not that they deserved special consideration. To get their requests met, many pregnant workers, therefore, needed to demonstrate they had physical limitations covered under the Americans With Disabilities Act, often creating insurmountable hurdles.
The new law treats pregnancy and related conditions as themselves deserving of “reasonable accommodations” and places the burden on employers to prove “undue hardships” for denying any requests.
The law applies to employers of at least 15 workers. The EEOC estimates it will cover roughly 1.5 million pregnant workers in any given year. The EEOC regulations published on April 15 are set to go into effect in June. WHAT ARE WORKERS ENTITLED TO?The EEOC’s 400-page document encompasses a wide array of conditions and relevant advice for employers.
It states that workers are entitled to unpaid time off for situations such as prenatal appointments, fertility treatments, abortion, miscarriage, postpartum depression and mastitis, an infection that arises from breastfeeding. This includes workers who are not covered by federal family leave laws and those who have not been on the job long enough to accrue time off.
Workers can ask for flexible working arrangements to deal with morning sickness, such as a later start time, clearance to work from home or permission to carry snacks in workplaces where eating is typically prohibited. If they can’t sit or stand for extended periods due to sciatica, which is common in late pregnancy, they can request a schedule adjustment so their commutes happen during less crowded hours.
The regulations also allow workers to be exempted from tasks such as climbing ladders or heavy lifting. If those duties are essential to their jobs, they can still request a temporary dispensation, according to the EEOC.
Employers are not required to accommodate workers in the exact way they asked, but they must provide reasonable alternatives. They can't reject a request without proving that doing so would cause significant financial or operational difficulties for the organization. They also can't make employees take unpaid leave if there is a reasonable accommodation available.
HOW SHOULD EMPLOYEES ASK FOR ACCOMMODATIONS?
The EEOC stresses that it should not be hard for pregnant employees to request accommodations. They don't have to make requests in writing, use specific language, mention any laws, or in most cases, provide documentation like doctors' notes. Employers need to respond promptly and have a discussion about how to reasonably accommodate the employee's needs.
However, legal experts recommend both employees and employers document the process. A Better Balance, the non-profit leading the 10-year campaign for the law's passing,
suggests employees become familiar with
their legal rights and be as clear as possible about their limitations and the changes they need. Employees who believe a request was unlawfully denied can submit a complaint to the EEOC
. They have 180 days to do so, though the deadline can be extended in some states. WHAT ARE THE EEOC RULES REGARDING ABORTION?The EEOC included abortion in the conditions covered by the law. Nevertheless, the rules state that employers are not required to cover expenses related to the procedure or provide health insurance that does.
The EEOC regulations argue that adding abortion is in line with the agency's long-standing interpretation of other laws under Title VII of the 1964 Civil Rights Act, including the Pregnancy Discrimination Act.
However, the decision was criticized by Republican lawmakers who had supported the law's passing. Two of the five-member EEOC's Republican members voted against the regulations.
In a statement explaining her disagreement, Commissioner Andrea Lucas said the agency expanded the scope of the law to cover almost every condition, circumstance, or procedure related to any aspect of the female reproductive system in a way that cannot reasonably be reconciled with the text of the law.
Melissa Losch, a labor and employment lawyer at the New Orleans-based firm McGlinchey Stafford, said she expects the regulations to lead to more legal action. Losch mentioned the case of a worker living
in a state with strict abortion laws requesting time off to have the procedure done in another state. The EEOC rules do not offer a clear answer on whether granting such a request would come into conflict with strict state abortion laws, she added.
ARE EMPLOYEES IN TEXAS PROTECTED? a state On Feb. 27, a federal judge
blocked the enforcement of the Pregnant Workers Fairness Act
for Texas state employees, following a lawsuit filed by Texas Attorney General Ken Paxton. Paxton argued the law was unconstitutional as it was part of a spending bill which cleared the House without a majority of members present, and the judge ruled in his favor. Gedmark, from A Better Balance, expressed optimism that the Biden administration would win in its expected appeal of the ruling. Meanwhile, federal and private sector workers in Texas are covered by the law. But in her dissenting statement, Lucas cautioned that if the Texas case or any future lawsuits are successful in overturning the law, the EEOC's divisive rules have nearly eliminated the chances of a bipartisan effort to reenact it.
WHAT HAS THE LAW’S IMPACT BEEN SO FAR?
Employers have had to follow the Pregnant Workers Fairness Act since it became effective on June 27, 2023, although the EEOC regulations offered guidance on how to comply.
The law quickly made a difference for many low-wage workers, according to Gedmark.
A Better Balance, which runs a helpline, has received overwhelmingly positive feedback from workers, she noted. Last summer, the organization assisted some women whose employers ceased resisting requests for accommodations as soon as the law came into effect, Gedmark said.
Some workers reported that their employers were still using the old legal framework, giving them disability paperwork to fill out in response to requests.
The EEOC stated that it received nearly 200 complaints alleging violations of the law by the end of the fiscal year on Sept. 30, 2023.
Gedmark mentioned that the success of the law will depend on enforcement and increasing awareness.
“If workers are unaware of the law and their rights, then it really undermines the purpose of the law,” she said.
Pregnant workers have the right to a wide range of accommodations under new federal regulations for enforcing the Pregnant Workers Fairness Act that advocates say could transform workplace culture for millions of people.
“If workers don’t know about the law and don’t know about their rights, then it really undermines the purpose of the law,” she said.
