Morning sickness? Prenatal check-ups? What to know about new rights for pregnant workers

Pregnant workers are entitled to a wide range of accommodations under new federal regulations enforcing the Pregnant Workers Fairness Act, which supporters say could change workplace culture for millions of people.

The Equal Employment Opportunity Commission, the agency responsible for 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 treatments and contraception as well as medical issues requiring job protection. .

The rules, which passed on a 3-2 vote along partisan lines, were released Monday and provide comprehensive guidance for addressing more routine pregnancy issues, such as morning sickness, back pain and avoiding heavy lifting. Labor advocates say the law will be especially transformative for pregnant women in low-paid jobs, who are often denied simple requests like more bathroom breaks.

Here’s what you need to know about the law and EEOC regulations.

Congress passed the law in December 2022 with bipartisan support after a decade-long campaign by women’s rights and labor advocates, who argued that the 1978 Pregnancy Discrimination Act did little to ensure women get the benefits they need at work could have.

The law only stated that pregnant workers should be treated the same as other workers, and not that they deserved special attention. To get their requests met, many pregnant workers therefore had to demonstrate that they had physical limitations covered by the Americans With Disabilities Act, often posing insurmountable hurdles.

The new law considers pregnancy and related conditions to be “reasonable accommodations” and places the burden on employers to prove “undue hardship” if they deny requests.

The law applies to employers with at least 15 employees. The EEOC estimates that it will reach approximately 1.5 million pregnant workers in any given year. The EEOC regulations published on April 15 will go into effect in June.

The EEOC’s 400-page document covers a wide range of terms and relevant advice for employers.

It states that employees are entitled to unpaid leave for situations such as prenatal appointments, fertility treatments, abortion, miscarriage, postpartum depression and mastitis, an infection resulting from breastfeeding. This includes employees who are not covered by federal family leave laws and employees who are not at work long enough to accrue leave.

Employees 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 into workplaces where eating is typically prohibited. If sciatica, which is common in late pregnancy, prevents them from sitting or standing for extended periods, they can request a schedule adjustment so that their commute takes place during less busy hours.

The regulations also allow employees to be excused from tasks such as climbing ladders or heavy lifting. If those duties are essential to their work, they can still apply for a temporary exemption, according to the EEOC.

Employers do not have to accommodate employees exactly as requested, but must provide reasonable alternatives. They cannot deny a request without setting the bar to prove that it would cause “undue hardship” to the organization’s finances or operations. They cannot force employees to take unpaid leave if reasonable accommodations are available.

The EEOC emphasizes that it “should not be complicated or difficult” for pregnant workers to request accommodations. Employees are not required to submit written requests, use specific words, cite laws or, in most cases, provide documentation such as doctor’s notes. Employers need to respond quickly and have a conversation about how to reasonably meet an employee’s needs.

Still, legal experts advise both employees and employers to document the process. A Better Balance, the non-profit organization that led the 10-year campaign to introduce the law, advises employees to familiarize themselves with their legal rights and be as specific as possible about their limitations and the changes they need.

Employees who believe a request has been unlawfully denied may file a complaint with the EEOC. They have 180 days to do so, although the deadline may be extended in some states.

The EEOC included abortion among the conditions covered by the law. However, the rules state that employers are not required to cover costs associated with the procedure or provide health insurance that does so.

The EEOC regulations state 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 had defended the law’s passage. 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 has expanded the scope of the law “to cover virtually any term, condition or procedure involving any aspect of the female reproductive system” in a manner that is “reasonably inconsistent with the text” of the law.

Melissa Losch, an employment attorney at the New Orleans-based firm McGlinchey Stafford, said she expects the regulations to spark further lawsuits. Losch cited the example of an employee who lives in a state with a restrictive abortion law and requests leave to undergo the procedure in another state. The EEOC rules provide “no good answer” to the question of whether granting such a request would violate the state’s restrictive abortion laws, she added.

On February 27, a federal judge blocked enforcement of the Pregnant Workers Fairness Act for Texas state employees, a ruling 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 that passed in the House without a majority of members present, and the judge ruled in his favor.

Gedmark of A Better Balance said she was optimistic the Biden administration would prevail 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 warned that if the Texas case or any future lawsuits succeed in overturning the law, the EEOC’s divisive rules “virtually nullify” the chances of a bipartisan effort to reinstate the law have done”.

Employers have been required to comply with the Pregnant Employee Fairness Act since it went into effect on June 27, 2023, although EEOC regulations provided guidance on how to do so.

According to Gedmark, the law quickly made a difference for many low-wage workers.

A Better Balance, which runs a helpline, has heard “overwhelmingly positive experiences from employees,” she said. Last summer, the organization worked with some women whose employers stopped resisting requests for accommodations once the law went into effect, Gedmark said.

Some workers reported that their employers were still operating under the old legal framework, handing them pages of disability paperwork to complete in response to requests.

The EEOC said it had received nearly 200 complaints about violations of the law by the time the fiscal year ended September 30, 2023.

Gedmark said the law’s success will depend on enforcement and raising awareness.

“If workers don’t know the law and their rights, it really undermines the purpose of the law,” she said.

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