Almost two months after company accommodations for pregnant workers came into force, the rules around what employers can and cannot do have yet to be finalized – but that doesn't mean the protections aren't in place.
The Equal Employment Opportunity Commission's proposed regulations are expected to provide greater clarity when finalized, but workers can still access their rights under the new Pregnant Workers Fairness Act and employers still have an obligation to understand the law and it to follow.
Here's what you need to know about why employees say the law is necessary, what employee rights the law includes, and what employers' obligations are to employees.
Why the law was necessary
Other federal laws regulate the rights of pregnant workers, but advocates have long argued that many of them are too narrowly worded to address the situations pregnant workers face when seeking accommodation. For example, the Americans with Disabilities Act does not consider pregnancy a disability, but pregnancy-related complications such as preeclampsia do. Under the ADA, a pregnant worker cannot seek an accommodation in the hopes of preventing dangerous pregnancy-related complications.
The Pregnancy Discrimination Act, passed in 1978, prohibits discrimination against pregnant employees, but in practice it is difficult for employees to obtain an accommodation because it requires finding another employee who will receive the accommodation they seek. This can be a challenging and time-consuming process as employees may not know what type of accommodation their colleagues are seeking or may not have access to this information like their employer.
Despite these laws, 23% of mothers said in a survey last year that they had considered whether or not to quit their job because of a lack of reasonable accommodations in the workplace or concerns about discrimination during pregnancy.
The Pregnant Workers Fairness Act, passed in December, has been in the works for a decade. Meanwhile, states began taking their own measures. As of April, 30 states and the District of Columbia and four municipalities had laws similar to the Pregnant Workers Fairness Act, some of which may provide stronger protections than the PWFA in certain situations, according to A Better Balance, a nonprofit worker advocacy group . Twenty states, including Alabama, Missouri, Pennsylvania, Wisconsin, and Michigan, did not have such federal protections at the time of the state analysis. The non-profit organization has a comprehensive list of government guidelines regarding the rights of pregnant workers. In Georgia there is no clear protection for the rights of pregnant workers.
What rights do you have as an employee?
According to the EEOC, congressional and federal agencies, employment agencies, labor organizations, private employers with 15 or more employees, and state and local governments with 15 or more employees are subject to the law.
Although the rules have not yet been finalized, you can already take action if you believe your rights have been violated. On June 27, the EEOC began allowing workers to file charges under the law for violations that occurred that day or later. Employees must take this step before they can file a lawsuit against their employer. The law protects employees and applicants who require accommodations due to pregnancy, childbirth, or medical conditions related to pregnancy and childbirth. Under the PWFA, pregnant workers should have the opportunity to request reasonable accommodations, such as: B. closer parking options, uniforms in their size and additional rest periods.
The PWFA is similar in many ways to the Americans with Disabilities Act. There is no requirement for an employer to provide an accommodation if doing so would cause an “undue hardship,” or in other words, it would involve great difficulty or expense for the employer.
But the law is also a little different from the ADA. Unlike the ADA, where the employee must be able to perform the essential functions of her job or else she will no longer be eligible for an accommodation, the PWFA says employees do not always have to be able to temporarily because of their pregnancy perform an essential function. It is expected that they will be able to resume these duties in the near future.
The EEOC'a's proposed rules define the “near future,” or point in time at which employees will be able to perform essential functions of their jobs following temporary incapacity, generally up to 40 weeks. This does not mean that employees always have 40 weeks, but that the need for 40 weeks does not disqualify an employee from accommodation. The regulations also state that if there are several options for effective accommodation, the employer should give preference to the employee's preferred accommodation.
Liz Morris, deputy director of the Center for WorkLife Law, said applicants and new employees who wish to work remotely due to their pregnancy are also covered by the PWFA. Applicants can request adjustments themselves during the hiring process, such as making changes to a physical test. If a pregnant applicant anticipates that she will require accommodations from her employer due to her pregnancy, the applicant may agree to a general no-accommodation policy and then apply for it once hired.
The EEOC regulations also detail pregnancy-related medical conditions that apply to workers under the PWFA, said Elizabeth Gedmark, vice president of A Better Balance.
“…The proposed rule addresses pregnancy-related issues ranging from preterm labor to anxiety and depression, while clarifying that restrictions can also be 'modest, minor and/or episodic,'” she told States Newsroom via E-mail.
Breastfeeding, possible pregnancy, miscarriage, infertility and fertility treatments, as well as abortion are also listed in the regulation. An employee who is required to take leave because of a limitation due to a medical condition related to pregnancy and childbirth should be entitled to such leave under the PWFA under the proposed rules. The EEOC cites miscarriages and births as examples of reasons for employees 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 will go through a public comment period until Oct. 10, and Victor Chen, communications director at the EEOC, told States Newsroom that employers are not yet required to follow the proposed rules. However, he added that the PWFA itself provides guidance to employers. He suggested employers read the EEOC's list of frequently asked questions and listen to the webinar. He said the EEOC will work “as quickly as possible to finalize the regulation” after the comment period ends.
Morris said that while the regulations are not set in stone, “If I were an employer, I would definitely follow them for now as they provide an excellent indication of how the law will ultimately be interpreted.”
The rules specify that employers cannot deny work to an applicant or employee because they need an accommodation, cannot make a decision on behalf of a pregnant employee without discussing what accommodation she will receive, or force her to take leave , if this is the case, accommodation that they could take advantage of in order to continue working. They also cannot retaliate against workers who advocate for themselves under the law and report discrimination, nor can they attempt to discourage workers from taking advantage of their legal protections.
Michael Fallings, managing partner of Tully Rinckey PLLC's Austin office who specializes in federal employment law, said he believes it will be useful for employers to have more information about how to fairly treat pregnant workers seeking reasonable accommodations become.
“I think it could be helpful for employers because I think some employers are sometimes afraid of litigation, and now that there's a law that says what you can and can't do, it gives employers one certain basis,” he said.
Morris said employers should keep in mind that they need to provide accommodations quickly, and if that is not possible, they should consider temporary accommodations. The proposed EEOC regulations explain that “unnecessary delay” could result in a violation of the law.
The future of the law and its regulations
The Act's provisions are subject to adjustment during the rulemaking process and may be challenged in court. The Alliance Defending Freedom, which has been involved in numerous lawsuits against abortion rights, called the proposed regulations a “federal overreach.” The ADF, a legal advocacy group, has argued that the government does not have the legal authority to include abortion in its implementation. Morris said it makes sense to include abortion-related accommodations because the EEOC has always defined pregnancy, childbirth and related medical conditions in court to include abortions.
Organizations that support or oppose the law also have the opportunity to propose changes to the regulations. The U.S. Chamber of Commerce voted in favor of passing the law and will provide 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 provide public comment on the proposed EEOC regulations. She would like to see some changes to the medical certification issue to make it even easier for employees to obtain accommodations.
“A shocking number of people do not receive prenatal care either because they cannot access it due to financial barriers or because they live in a remote area where it is difficult to travel to receive prenatal care,” she said.
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