by Casey Quinlan, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

August 27, 2023

Almost two months after workplace accommodations for pregnant workers became law, the rules surrounding what employers can and cannot do have yet to be finalized — but that doesn’t mean the protections are not in place.

The Equal Employment Opportunity Commission’s proposed regulations are expected to offer more clarity once finalized, but workers can still access their rights under the new Pregnant Workers Fairness Act and employers are still required to understand the law and follow it.

Here’s what you need to know about why workers say the law was needed, what workers’ rights are under the law and employers’ obligations to employees.

Why the law was needed

Other federal laws cover the rights of pregnant workers but advocates have long argued that many of them are too narrow to address the situations pregnant workers face when they seek accommodations. The Americans with Disabilities Act, for instance, does not consider pregnancy to be a disability but pregnancy-related complications, such as preeclampsia, do qualify. Under the ADA, a pregnant worker can’t seek out an accommodation in the hope of preventing dangerous pregnancy-related complications.

The Pregnancy Discrimination Act, passed in 1978, prohibits discrimination against pregnant employees but it’s difficult in practice for workers to receive accommodations under the law, because it requires finding another worker who received accommodations like the ones they’re seeking. This can be a challenging and time-consuming process because workers may not be aware of what kinds of accommodations their coworkers are seeking or may not have access to this information in the way their employer does.

Despite those laws, 23% of mothers said in a survey last year that they had weighed whether or not to leave their job because their workplace lacked reasonable accommodations or they were worried about pregnancy discrimination.

The Pregnant Workers Fairness Act, which passed in December, has been in the works for a decade. In the intervening years, states began taking their own action. As of April, 30 states and the District of Columbia, and four localities, had similar laws to the Pregnant Workers Fairness Act, some of which may offer stronger protections in certain situations than the PWFA, according to A Better Balance, a worker advocacy nonprofit. Twenty states did not have state protections like these at the time of its state analysis, including Alabama, Missouri, Pennsylvania, Wisconsin, and Michigan. The nonprofit has a comprehensive list of state policies on pregnant workers’ rights. Georgia does not have clear protections for pregnant workers’ rights.

What are your employee rights

Congress and federal agencies, employment agencies, labor organizations, private employers with 15 or more workers, and state and local governments with 15 or more workers are subject to the law, according to the EEOC.

While the rules haven’t been finalized, if you think your rights have been violated, you can already take action. On June 27, the EEOC began allowing workers to file charges under the law for violations that occurred on that day or later. Workers need to take this step before they can file a lawsuit against their employer. The law protects employees and job applicants who need accommodations because of pregnancy, childbirth, or conditions related to pregnancy and childbirth. Under the PWFA, pregnant workers should be able to make requests for reasonable accommodations, such as closer parking, uniforms in their size, and additional rest time.

The PWFA is similar in many ways to the Americans with Disabilities Act. It does not require an employer to provide an accommodation if doing so would bring it “undue hardship,” or in other words, it would come at great difficulty or expense to the employer.

But the law is also a bit different than the ADA. Unlike the ADA, where the employee has to be able to do the essential functions of their job or they no longer qualify for accommodations, the PWFA says that workers do not always have to be able to perform an essential function temporarily because of their pregnancy. It is expected that they will be able to resume those duties in the near future.

The EEOC’a proposed rules define the “near future,” or when workers will be able to perform essential functions of their job after being temporarily unable to do so, as generally going up to 40 weeks. This does not mean workers will always have 40 weeks but that needing 40 weeks doesn’t disqualify an employee for the accommodations. The regulations also say that if there are multiple options for effective accommodations, the employer should favor the worker’s preferred accommodation.

Liz Morris, deputy director for the Center for WorkLife Law, said applicants and new employees who want to work remotely because of their pregnancy will also be covered in the PWFA. Applicants can request accommodations during the hiring process itself, such as making modifications to a physical test. If a pregnant applicant anticipates that they will need adjustments from an employer because of their pregnancy, the applicant can agree to a general policy without accommodations and then request them once they are employed.

The EEOC regulations also get into detail about pregnancy-related medical conditions that apply to workers under the PWFA, A Better Balance Vice President Elizabeth Gedmark said.

“…The proposed rule discusses pregnancy-related issues ranging from preterm labor to anxiety and depression while also making clear that limitations can also be ‘modest, minor, and/or episodic,’” she told States Newsroom over email.

Lactation, potential pregnancy, miscarriage, infertility and fertility treatments, and having an abortion are also listed in the regulation. An employee who needs to take leave because of a limitation due to a condition related to pregnancy and childbirth should qualify for that leave under the PWFA, according to the proposed rules. The EEOC gives miscarriage and childbirth as examples of reasons for workers to take different forms of leave. The same definition of “near future” also applies. I

A Better Balance provides sample letters for employees to use when requesting work accommodations related to pregnancy.

What employers need to know

The rules are going through a public comment period through Oct. 10, and Victor Chen, director of communications at the EEOC, told States Newsroom that employers are not required to follow the proposed rules just yet. But he added that the PWFA itself provides direction for employers. He suggested employers read the EEOC’s list of commonly asked questions and listen to its webinar. He said the EEOC “will move as quickly as possible to finalize the regulation” after the comment period closes.

Morris said that although the regulations aren’t set in stone, “If I were an employer, I would certainly follow them for now, as they are an excellent indication of how the law will ultimately be interpreted.”

The rules specify that employers can’t deny work to an applicant or employee because of their need for an accommodation, make a decision for a pregnant worker without any discussion on which accommodation they will receive or force them to go on leave if there is an accommodation they could take to continue working. They also can’t retaliate against workers for advocating for themselves under the law and reporting discrimination nor can they try to stop workers from enjoying their legal protections.

Michael Fallings, the managing partner of Tully Rinckey PLLC’s Austin office, who specializes in federal employment law, said he thinks it will be useful for employers to have more information on how to fairly treat pregnant workers seeking reasonable accommodations.

“I think it could be helpful for employers because I think some employers are in fear of litigation at times and now that you have a law in place that says what you can or cannot do, it provides some basis for the employers,” he said.

Morris said that employers should keep in mind that they need to swiftly provide accommodations and if they can’t, they should think about interim accommodations. The proposed EEOC regulations explain that an “unnecessary delay” could result in a violation of the law.

The future of the law and its regulations

The law’s regulations may be tweaked during the rulemaking process and could be eventually challenged in the courts. The Alliance Defending Freedom, which has been involved in numerous lawsuits challenging abortion rights,  called the proposed regulations “federal overreach.” The ADF, a legal advocacy group, has argued that the administration doesn’t have the legal authority to include abortion in its implementation. Morris said that accommodations related to abortion are reasonable to include because the EEOC has always defined pregnancy, childbirth and related medical conditions in the courts as including abortion.

Organizations that supported or opposed the law will also have the opportunity to suggest changes to the regulations. The U.S. Chamber of Commerce advocated for the passage of the law and will provide a public comment on parts of the rule that could be changed, the group told States Newsroom, but declined to elaborate on what should be revised.

Morris said her organization also plans to submit a public comment on the proposed EEOC regulations. She wants to see some revisions on the issue of medical certification to make it even easier for employees to receive accommodations.

“A shocking number of people don’t receive prenatal care because they don’t have access to it either because of financial barriers or because they live in a remote area where it’s difficult to travel to, to receive prenatal care,” she said.

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.