Explained | US: Pregnant Workers Fairness Act goes into effect. How will it help women?

Washington, United States

The United States’ recently passed Pregnant Workers Fairness Act (PWFA) went into effect on Tuesday (June 27). In line with this, millions of pregnant employees across the US would have access to expanded protections. 

The PWFA comes after over a decade of campaigning, which would not only bar employers from discriminating against pregnant workers but also provide “reasonable accommodations” for their employees to continue working.

What is the PWFA?

According to the US Equal Employment Opportunity Commission (EEOC) website, the new law only applies to accommodations while existing laws like the illegal firing of employees or discrimination against workers on the basis of pregnancy, childbirth, or related medical conditions, will continue to be enforced by the government agency. 

The new federal law mandates “reasonable accommodations” for pregnant workers unless doing so would impose an “undue hardship” on the employer. “An ‘undue hardship’ is a significant difficulty or expense for the employer,” said the EEOC. It could be a cost to the employer, the employer’s resources and/or their operations.

PWFA protects employees and applicants of “covered employers” which includes private and public sector companies with at least 15 employees, Congress, federal agencies, employment agencies, and labour organisations.

In line with the new law, employers cannot force an employee to accept an accommodation, like taking a leave, without a discussion with the employee first. The organisation also cannot deny a job or other employment opportunities to a qualified or applicant-based employee who requires reasonable accommodation. 

Furthermore, the employer cannot require an employee to take a leave if other options under reasonable accommodation can be provided which would allow the employee to continue working. 

The organisation can also not retaliate against an individual for reporting or opposing discrimination under the PWFA or hinder their participation in any proceedings, like an investigation, as per the new federal law.

How does it protect pregnant women in the workplace?

The new law is said to have effectively bridged the legal gap between the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA) with the aim that millions of workers in the US would not have to choose between their paycheck and a healthy pregnancy. Furthermore, it also protects women who would otherwise fall through the cracks between the two laws. 

So far, ADA which has been in place for over three decades now prevents discrimination against employees with disabilities and also requires employers to make accommodations for them. However, pregnancy, under this law, or by itself is not considered a disability which mandates accommodation. 

Similarly, the PDA bars employers from discriminating against workers on the basis of their pregnancy be it hiring or firing someone. Under the PDA, which was enacted in 1978, pregnant workers would only be treated as well as, or equal to, the way that employers accommodate non-pregnant people “similar in their ability or inability to work.” 

Therefore, in some cases, pregnant employees would be expected to carry out work just like others are under PDA. Neither law offered protection for otherwise healthy pregnant workers with limitations that come with carrying a child. 

Thus, the PWFA would require employers to provide reasonable accommodations for known pregnancy-related limitations regardless of how they are treating their non-pregnant employees or even if their pregnancy symptoms are not severe enough to constitute a disability. 

What are these ‘reasonable accommodations’?

Under the newly enacted law, some of these “reasonable accommodations” include, time off from work to recover from childbirth, pregnancy loss and postpartum depression. 

Other reasonable expectations include changes to the work environment day-to-day, like additional breaks to rest, drink water or eat; receiving closer parking; having flexible hours to attend prenatal or postnatal appointments; excused from strenuous activities, and so on.

No need for ‘magic words’

The PWFA also says that the condition which would require or necessitate accommodation must be “known” to the employer, which essentially means that it should be communicated to the organisation by the employee or their representative. 

However, the pregnant employee should not have to use “magic words” or legal terms, in order to receive the right to accommodation. Furthermore, once the limitations of the employee are known to the employer they could either grant the request or offer another way to accommodate the needs of the pregnant worker. 

An employment attorney, Christine Bestor Townsend, told CBS MoneyWatch, “Employees don't have to use any magic language. Employers need to recognize the requests that come in and be prepared to deal with those requests.” She also noted that since pregnancy is temporary the “hardship standard is harder”.

Rights groups hail the legislation

Over the years, several employees have come forward with their stories and the hardships they had to face in the workplace while they were pregnant or postpartum. Speaking about her experience, Natasha Jackson said that she faced discrimination, over a decade ago, that eventually led to her termination which nearly drove her family toward homelessness.

In an interview with ABC News, Jackson said that she was three months pregnant with her third child while working as an account manager at the local furniture store in Charleston, South Carolina. However, she was placed on a 12-week unpaid leave under the Family and Medical Leave Act (FMLA) after her doctor recommended that she avoid lifting anything more than nine kilogrammes.

“The PWFA is the culmination of a 10-year-long campaign to close gaps in civil rights laws so pregnant workers are not pushed out of jobs or forced to risk their health when they require reasonable accommodations on the job, like a water bottle to stay hydrated or a transfer away from strenuous heavy lifting,” Vice President of an employee advocacy group, A Better Balance, Elizabeth Gedmark, told CBS.

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