Pregnant employees are entitled to a wide range of accommodations under new federal regulations to enforce the Pregnant Workers Fairness Act, which advocates say could change workplace culture for millions of people.
The Equal Employment Opportunity Commission, the law enforcement agency, adopted a comprehensive 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 employment protection. .
The rules, which were adopted on a 3-2 vote along party lines, were published on Monday and offer comprehensive guidelines for dealing with more routine pregnancy difficulties such as morning sickness, back pain and the need to avoid lifting heavy weights. 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 you should know about the law and EEOC regulations.
Congress passed the law with bipartisan support in December 2022, after a decade-long campaign by women’s rights and labor advocates, who argued that the Pregnancy Discrimination Act of 1978 did little to ensure that women would receive the accommodations they might need at work.
The law only established that pregnant workers should be treated in the same way as other employees, not that they deserve special consideration. For their requests to be granted, many pregnant workers therefore needed to demonstrate that they had physical limitations covered by the Americans with Disabilities Act, which often created insurmountable obstacles.
The new law treats pregnancy and related conditions as deserving of “reasonable accommodation” and places the burden on employers to prove “undue hardship” for denying any requests.
The law applies to employers of at least 15 workers. The EEOC estimates that it will cover about 1.5 million pregnant workers in a given year. The EEOC regulations published on April 15 are expected to take effect in June.
The EEOC’s 400-page document covers a wide range of conditions and advice relevant to employers.
It states that workers have the right to unpaid leave for situations such as prenatal consultations, fertility treatments, abortion, miscarriage, postpartum depression and mastitis, an infection that appears during 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 accumulate time off.
Workers can request flexible work arrangements to deal with morning sickness, such as a later start time, permission to work from home, or permission to bring snacks to workplaces where eating is normally prohibited. If they are unable to sit or stand for long periods due to sciatica, which is common at the end of pregnancy, they can request a schedule adjustment so that their trips can occur at less busy times.
The regulations also allow workers to be exempt from tasks such as climbing stairs or lifting weights. If these functions are essential to their work, they can still request a temporary layoff, according to the EEOC.
Employers do not have to accommodate workers exactly as requested, but must offer reasonable alternatives. They cannot deny a request without passing a high standard to prove that it would cause “undue hardship” to the organization’s finances or operations. They cannot force workers to take unpaid leave if a reasonable accommodation is available.
The EEOC emphasizes that “it should not be complicated or difficult” for pregnant workers to request accommodations. Workers do not need to make written requests, use specific words, cite laws or, in most cases, provide documentation such as medical certificates. Employers must respond quickly and talk about how to reasonably accommodate workers’ needs.
Still, legal experts advise both workers and employers to document the process. Better Balance, the nonprofit that led the 10-year campaign to pass the law, advises workers to familiarize themselves with their legal rights and to be as specific as possible about their limitations and changes to need.
Workers who believe a request was illegally denied may file a complaint with the EEOC. They have 180 days to do so, although the deadline can be extended in some states.
The EEOC included abortion among the conditions provided for in the law. The rules state, however, that employers are not required to cover expenses related to the procedure or to offer health insurance that does so.
EEOC regulations argue that the inclusion of abortion is consistent with the agency’s long-standing interpretation of other laws under Title VII of the Civil Rights Act of 1964, including the Pregnancy Discrimination Act.
But the decision drew condemnation from Republican lawmakers who advocated passage of the law. The two Republican members of the five-member EEOC voted against the regulations.
In a statement explaining her dissent, Commissioner Andrea Lucas said the agency had expanded the scope of the law “to encompass virtually every condition, circumstance, or procedure relating to any aspect of the female reproductive system” in ways that “cannot be reasonably reconciled with the text” of the law.
Melissa Losch, an employment lawyer with the New Orleans-based firm McGlinchey Stafford, said she expects the regulations to give rise to new litigation. Losch cited the example of a worker who lives in a state with a restrictive abortion law and who requested leave to undergo the procedure in another state. EEOC rules “do not provide a good answer” about whether granting such a request would conflict with state restrictive abortion laws, she added.
On February 27, a federal judge blocked the application of the Pregnant Workers Fairness Act to Texas state employees, a decision that came in response to a lawsuit filed by Texas Attorney General Ken Paxton. Paxton argued that the law was unconstitutional because it was part of a spending bill passed in the House without a majority of members present, and the judge ruled in his favor.
A Better Balance’s Gedmark said he is optimistic the Biden administration will prevail in the expected appeal of the ruling. Meanwhile, federal and private sector workers in Texas are covered by the law.
But in his dissenting statement, Lucas warned that if the Texas case or any future lawsuits succeed in overturning the law, the EEOC’s divisive rules have “all but extinguished” the chances of a bipartisan effort to reconstitute it.
Employers have been required to comply with the Pregnant Workers Fairness Act since it took effect on June 27, 2023, although EEOC regulations provide guidance on how to do so.
The law quickly made a difference for many low-wage workers, according to Gedmark.
Better Balance, which operates a helpline, “has heard an overwhelmingly positive experience from workers,” she said. Last summer, the organization worked with some women whose employers stopped resisting requests for accommodations once the law took effect, Gedmark said.
Some workers reported that their employers were still operating under the old legal framework, giving them pages of disability documentation to complete in response to requests.
The EEOC said it received nearly 200 complaints alleging violations of the law as of the end of the fiscal year on September 30, 2023.
Gedmark said the law’s success will depend on enforcement and awareness.
“If workers don’t know the law and don’t know their rights, then that really undermines the purpose of the law,” she said.
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