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pregnant workers fairness act
Biden Admin Unveils New Rules Protecting Workers Who Get Abortion Care
"With these final rules, we have achieved a huge step forward for women's economic security, maternal health, and the economy as a whole," said one advocate.
Apr 16, 2024
Reproductive justice advocates on Monday applauded the Biden administration's "groundbreaking" new workplace protections for pregnant people, including requirements that most employers provide workers with time off for a range of pregnancy-related reasons—including, over the objections of right-wing lawmakers, abortion care.
The Equal Employment Opportunity Commission (EEOC) issued a final rule and guidance for employers, clarifying that under the Pregnant Workers Fairness Act (PWFA), companies with 15 or more employees must accommodate a worker's needs if they request time off for "pregnancy, childbirth, or related medical conditions" including prenatal doctor's appointments, childbirth recovery, postpartum depression, miscarriage, and abortion.
The guidance also details the wide array of accommodations pregnant workers can request under the law, including exemptions from heavy lifting and scheduling changes for people who suffer from pregnancy symptoms like nausea or morning sickness.
The PWFA was passed in December 2022 and went into effect several months later, but the EEOC's newly finalized regulations detail how the law must be enforced, including in states with abortion bans and restrictions.
The commission has spent the last four months sorting through tens of thousands of public comments on the proposed regulations, including those from reproductive rights groups which urged the EEOC to explicitly include protections for people who seek abortion care—and forced pregnancy proponents to objected to the provisions.
Under the final rules, employers are required to provide time off for workers who ask for it to obtain an abortion locally or who need to travel out of state for care. The regulations include strong restrictions against retaliating against workers for taking time off for any pregnancy-related reason.
"This rulemaking does not require abortions or affect the availability of abortion; it simply ensures that employees who choose to have (or not to have) an abortion are able to continue participating in the workforce, by seeking reasonable accommodations from covered employers, as needed and absent undue hardship," the regulation states.
In its comment submitted to the EEOC about its draft rule before the final regulations were announced, the ACLU thanked the agency for "recognizing that abortion has for decades been approved under the law as a 'related medical condition' to pregnancy that entitles workers to reasonable accommodations, including time off to obtain abortion care."
Employers will not be required to pay for workers' medical care or travel, and the time off can be paid or unpaid.
But advocates said the protections will make a particular impact on low-wage workers, many of whom are not eligible for the Family and Medical Leave Act, which only requires 12 weeks of unpaid time off for workplaces with 50 or more employees.
Before the PWFA was passed in 2022, 1 in 4 new mothers returned to work within two weeks of giving birth.
The national group Reproductive Freedom for All said the new rules will help ensure "that reproductive freedom is a reality for all pregnant workers."
The EEOC's effort to finalize the regulations has sparked anger among Republicans including Sen. Bill Cassidy (R-La.), who called the inclusion of abortion in the rules "shocking and illegal."
But Dr. Verda Hicks, president of the American College of Obstetricians and Gynecologists (ACOG), said the regulations are an "acknowledgment of people's complex needs during and after pregnancy."
"Families should have peace of mind that they won't face financial hardship due to pregnancy-related job loss, and workers who are pregnant should not have to fear compromising their own health and well-being to maintain their employment," said Hicks. "Pregnancy is physiologically demanding and many of the medical conditions related to pregnancy necessitate reasonable accommodations for people after their pregnancy has ended."
Dina Bakst, co-president of A Better Balance: The Work and Family Legal Center, said the new regulations "appropriately recognize the broad scope of the Pregnant Workers Fairness Act and ensure millions of workers, especially women in low-wage and physically demanding jobs, can access the vital accommodations they need during pregnancy and after childbirth."
"Today with these final rules, we have achieved a huge step forward for women's economic security, maternal health, and the economy as a whole," said Bakst, who has lobbied for years for pregnancy workplace protections. "The Pregnant Workers Fairness Act is a life-changing protection for pregnant and postpartum workers nationwide, ensuring they aren't forced off the job or denied the accommodations they need for their health."
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Historic New Law Will Change the Lives of Pregnant Workers
After more than a decade of advocacy on Capitol Hill, the Pregnant Workers Fairness Act (PWFA) went into effect Tuesday.
Jun 28, 2023
Tuesday marked a historic moment in the lives of our nation’s pregnant workers: After more than a decade of advocacy on Capitol Hill, the Pregnant Workers Fairness Act (PWFA), signed by President Joe Biden in December 2022, went into effect. PWFA mandates “reasonable accommodations” for pregnant workers unless providing them would impose an “undue hardship” on their employer. For millions of U.S. workers, the new law promises to assure they no longer will have to choose between their paycheck and a healthy pregnancy.
Pregnancy is a normal condition of employment; more than 80% of all working women will have at least one child during their lives. But existing legal protections have been glaringly insufficient for workers whose duties may conflict with pregnancy’s physical realities—such as cashiers (prolonged standing), nurses (repetitive heavy lifting), custodians (exposure to chemicals), and firefighters (battling potentially lethal blazes). Under the Pregnancy Discrimination Act (PDA), enacted in 1978, pregnant workers have been entitled to temporary job modifications only if their employer provides them to others “similar in their ability or inability to work.” That language long has been used to deny needed “accommodations” to pregnant workers, on the grounds that favored non-pregnant colleagues are insufficiently “similar.”
Even after the Supreme Court’s 2015 Young v. United Parcel Service, Inc. ruling clarified that employers must have a compelling reason for denying accommodations to pregnant workers while granting them to others, employers—and judges—continued to withhold them. One study found that more than two-thirds of workers brought PDA failure-to-accommodate claims after Young lost their court cases.
“Pregnant workers need to be able to point to the law, in real time, to make their employers do the right thing so that a long-fought lawsuit isn’t necessary.”
ACLU client Michelle Durham was one of them. In March 2015, Michelle learned that she was pregnant with her first child. Michelle’s doctor told her not to lift anything over 50 pounds; because Michelle’s job duties as an Emergency Medical Technician (EMT) regularly required that she lift patients and stretchers far heavier than that, she asked her employer, Rural/Metro Corporation—a company providing medical care to underserved communities—to temporarily reassign her.
What happened next derailed Michelle’s life, and propelled her into the spotlight as an advocate for pregnant workers’ rights. Rural/Metro gave Michelle an ultimatum: Keep lifting heavy loads in violation of her doctor’s orders or go on an unpaid leave of absence for 90 days—after which she would be fired unless she returned to work. With six months to go until her due date, Michelle was terrified; she desperately needed her paycheck.
As she later put it, testifying in support of PWFA before Congress, “I wouldn’t trade the experience of being [a] mom for anything. But I will never be able to get back those months before and after [my son] was born, when all I could think about was what I was losing by being pregnant—not what I was gaining.” Ultimately, Michelle left Rural/Metro rather than risk her pregnancy. She had to move in with her grandmother, racked up credit card debt, and incurred crushing hospital bills when she delivered her son.
After filing a lawsuit, Michelle ultimately reached a settlement with Rural/Metro that provided some relief for the hardship she had experienced. The bad news is that her legal battle took seven years, in part due to a federal judge’s ruling that, under the PDA, Michelle was not “similar” to EMTs with occupational injuries. The ACLU won reversal of that decision on appeal, but the same judge reached a similarly erroneous conclusion at a later stage of the case.
As detailed in a new explainer on PWFA’s protections—co-authored by the ACLU and the Center for WorkLife Law—pregnant people needing accommodation no longer must identify “similar” non-pregnant co-workers. Modeled on the Americans with Disabilities Act, employers must grant pregnant workers an accommodation so long as it is “reasonable” and does not impose an “undue hardship” on the employer. Such clarity will aid workers and their employers alike in reaching mutually-agreeable solutions, with less cost and disruption—not to mention delay—than litigation.
As Michelle Durham put it before Congress, “Pregnant workers need to be able to point to the law, in real time, to make their employers do the right thing so that a long-fought lawsuit isn’t necessary.” She added, “My employer could have kept me on the job, but it didn’t—because it didn’t think it had to.” Starting Tuesday, Congress has left no doubt that they do.
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