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How the Pregnant Workers Fairness Act will make your job better.
Working while pregnant is still tough, but it just got a whole lot better.
The Pregnant Workers Fairness Act (PWFA), which went into effect this week, gives pregnant and postpartum workers rights to temporary accommodations at work — things like flexible schedules, lighter duty, remote work, more breaks, or access to a chair. The hope is that this will help them keep their jobs while they grow and recover from growing other humans. A decade in the making, the new law will likely change the work outcomes for millions of pregnant people who now have the ability to ask for what they need to get by at work.
“We have worked with countless women through our helpline who have been forced out onto unpaid leave or terminated for needing accommodations,” Sarah Brafman, national policy director of A Better Balance, a national advocacy group that helped craft the bill, told Vox. “They have lost their income. They have lost their health insurance. They were the primary breadwinner of their family and were forced into eviction, forced to go on to public benefits.”
Nearly 1 in 4 mothers have considered leaving their jobs due to a lack of pregnancy accommodations or fear of discrimination during pregnancy, a Bipartisan Policy Center poll last year found. And many others have been forced out because they couldn’t do their jobs without accommodations while pregnant.
“This law could spell the difference between someone continuing to feed their family and not,” Brafman said.
Since the law is new, it will likely take a while for employers and their employees to get up to speed, but here are some answers to common questions to help speed up that process.
What does the Pregnant Workers Fairness Act do?
The Pregnant Workers Fairness Act represents the first major advance in pregnant workers’ rights in decades. It expands on existing legislation, like the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act, and the Family and Medical Leave Act, to include more people and broader situations. It explicitly gives people experiencing limitations from pregnancy, childbirth, or related medical conditions rights to reasonable accommodations without them having to have a disability or to prove that others would be given the same exemptions. In other words, it gives women the ability to ask for what they need to continue working during and after pregnancy.
Regulations similar to the Pregnant Workers Fairness Act were already on the books in about half the states, but this brings clarity to that hodgepodge of laws and makes these rights more widely known. If your employer doesn’t work with you to come up with a solution, pregnant and postpartum workers also now have federal recourse, by being able to lodge complaints with the Equal Employment Opportunity Commission.
The law doesn’t say for how long after birth the accommodations can apply and, though many believe it should apply to situations of abortion or fertility treatments, it’s not yet entirely known how broadly the law will be interpreted. Equal Employment Opportunity Commission regulation, which is expected to come out at the end of the year, should help clear things up, but the full extent of what the law does and doesn’t do will likely be born out through future legal cases.
“It seems to be straightforward, but with other laws, like the ADA, where there’s an interactive process between the employer and the employee and it’s very fact specific, I predict there will be a lot of litigation around it,” said Jasmine Patel, a partner at Franklin, Gringer & Cohen who counsels employers on labor law. “Whenever there is, ‘In my eyes, it’s reasonable, but as an employer, it’s not reasonable. It’s an undue burden,’ someone’s going to be unhappy and that leads to litigation.”
Who is included?
The Pregnant Workers Fairness Act protects employees who work at public or private sector companies with at least 15 people and who disclose limitations related to pregnancy, childbirth, or related medical conditions. That means contract workers and people who work at small firms aren’t covered. Also you have to be proactive and ask for accommodations!
What kind of accommodations can someone get?
The definition of “accommodations” is up for interpretation and will be based on a person’s particular needs and their job.
“It’s not just a specific list, it’s a case-by-case determination of, ‘What is the need?’ and ‘Is there an accommodation that would enable you to work safely?’” said Emily Martin, VP of education and workplace justice at the National Women’s Law Center. “It is meant to be flexible rather than assuming that you know lawmakers can predict the whole universe of problems that might arise.”
Accommodations can include anything from giving pregnant waitstaff more bathroom breaks to knowledge workers gaining the ability to work from home if they’re nauseated or the commute is unmanageable as they recover from childbirth. It also means you can get more time for doctor’s appointments or even extended leave to recuperate from delivery.
That doesn’t mean you’ll get everything you ask for — and again, you have to ask — but your employer is obliged to work with you to help solve the problem. Employers have to do so unless it places an “undue hardship” on the business, meaning those accommodations would be really difficult or really expensive to provide. It wouldn’t, for example, be an undue hardship to give a cashier a chair so she can sit down while ringing up customers, or to let a marketer who did her entire job from home during the pandemic do so again. A warehouse job in which your entire job is lifting boxes might be able to grant you smaller items to lift but probably isn’t obligated to let you pivot to an entirely different job doing desk duty.
Why did it take so long?
After a 2012 op-ed by Dina Bakst, the co-founder and co-president of A Better Balance, her organization and lawmakers began writing the PWFA, which was first introduced to Congress that year. After being brought before Congress pretty much every year since, it was finally passed, with bipartisan support, last year.
Passing the law took the effort of numerous advocacy groups and politicians, state laws, and public pressure to finally get the vote passed, according to a report by A Better Balance. Bakst also cited growing awareness of negative outcomes for women and the lack of support they receive.
What does the Pregnant Workers Fairness Act not do?
It’s important to note that your limitations have to pertain to you, not your baby, according to Daphne Delvaux, founder of women’s rights firm Delvaux Law and creator of the popular Instagram account TheMamattorney.
“If you have a 3-year-old and you have childcare problems, you can’t use the law for that,” Delvaux said. “But what could be birth related is, ‘I have a baby. My baby’s not sleeping. My baby’s not taking the bottle and I have to go back to work. I am so stressed and anxious.”
She added that the stakes are high. “Risk of job loss during this time, it impacts their entire motherhood experience and it robs them of this beautiful bonding time,” Delvaux said. “It’s emotional robbery and financial robbery.”
More legislation is needed to help working families, including child care reform, paid maternity, and sick leave — as well as accommodations for parents as their children get older.
“This is a first, really important step,” A Better Balance’s Brafman said. “It is going to be a huge not just legal change, but culture change, for workers in this country, but it’s by no means the end of the work-family policies that this country still needs.”
How to take advantage of your new rights
Start by telling your employer, preferably in writing, your situation and asking for an accommodation that will make it easier to work while pregnant or postpartum.
A Better Balance runs a free legal hotline that can help people discuss their specific cases and provides a template for how to ask your boss for an accommodation. Delvaux also has a template you can use.
You should also talk with your doctor about what solutions at your job can best accommodate your health. A doctor’s note will go a long way in bulwarking your case.