A new federal law requires most employers to give “reasonable” pregnancy accommodations to workers. However, like many laws, the original language of the Pregnant Workers Fairness Act (PWFA) is somewhat broad and enforcement is complicated.
The federal agency in charge of enforcing the law is trying to help workers and employers understand it.
If an employer breaks this law, they don't go to criminal court. Instead, employment law relies partly on workers enforcing their own rights. People can sue employers who refuse to follow the law or report violations to the Equal Employment Opportunity Commission (EEOC) which tries to resolve the issue out of court and may sue on the employee’s behalf if that fails.
The EEOC has proposed a rule to clarify the PWFA’s language and guidance on it.
“The proposed rule has many examples of reasonable accommodations that we hope will be helpful for both employers and workers to see how the law should actually work out in real life,” said Sharyn Tejani, an associate legal counsel in the EEOC’s Office of Legal Counsel, which is partly responsible for rulemaking.
Laws like this work best when employers willingly comply, Tejani said.
“It doesn't really help all that much to have the accommodation denied, lose your job, file a charge, file a lawsuit and find out like four years later that you should have gotten an accommodation,” she said. “That's not what anybody wants.”
The law only applies to employers with 15 or more employees. The PFWA mirrors parts of the Americans with Disabilities Act, Tejani said.
“One of the differences is, for the Pregnant Workers Fairness Act, we're expecting that a lot of the requests for accommodations might be for something small like carrying water,” she said. “The worker doesn't have to have a disability. It can just be something small, like I need to drink more water during the day or it may be something like ‘I have a lifting restriction because I'm pregnant.'”
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Another difference that may make compliance easier, she said, is that, unlike many disabilities, pregnancy accommodations are generally only needed temporarily.
But Tejani and others expect some employers might still refuse to follow the law. Advocates, like Erin Macey of Indiana Community Action Poverty Institute, have raised concerns about the lack of legal resources for workers in Indiana.
“You need to know your rights,” Macey said. “You'd have resources easily accessible to be able to attain your rights. And you need to have faith that if you use those resources, you're actually going to get an outcome that's worthwhile.”
As the institute completes their Community Needs Assessment, Macey said “assistance with legal services” is coming up as a top need — and was also a top need in their 2020 statewide assessment.
“There just isn't enough support out there for people to really claim their rights, even if they know what their rights are,” Macey said.
Beyond legal support, the medical community needs to be on board too, she said. The phrase “reasonable accommodations” plays an important role in the PWFA, which means medical providers have to know what that means.
“Don't say ‘this person can't lift,’” Macey said. “Make it specific to like ‘they can't lift over 20 pounds’ or ‘they can't lift repeatedly.’ Be really tailored in what you ask for.”
If the request is unreasonable, Macey said it could put the pregnant worker’s job at risk.
Along with the “reasonable” standard, the law also requires accommodations not to cause “undue hardship” on the employer. The broad terms can be very subjective, EEOC’s Sharyn Tajini said, so the Commission's proposed rule provides examples of accommodations that might fit those requirements. But there is still a lot of wiggle room even within those examples, she said.
“It's very much a case-by-case situation,” she said. “We also talk [in the rule] about the process of getting a reasonable accommodation and how the worker should ask for it, and also that the employer should use something called the interactive process, which is basically a discussion between the worker and the employer to try to figure out what the worker needs and what the employer can provide.”
The EEOC’s proposed rule still leaves other unanswered questions. For example, the rule says workers should receive accommodations for abortion. That interpretation of the law is controversial, but Tejani said it is grounded in the law’s language and historical court precedent.
“The PWFA says that accommodations are available for pregnancy, childbirth or related medical conditions,” she said. “That language has been in Title VII as part of the Pregnancy Discrimination Act. Since 1979, the EEOC has interpreted that to include whether or not someone has an abortion or not.”
But it's not clear how that will work in states like Indiana, where abortion is mostly banned. The proposed rule also said that “potential pregnancy” may count as needing accommodation.
“We're interested in getting comments on all of this,” Tejani said. “I think one of the things we would love to hear from the worker side is sort of how straightforward is this? How easy will it be to do? Are there ways to make it easier for them so that it can flow quickly?”
The proposed rule is open for public comment until Oct. 10, 2023.