For the First Time Ever, the House Has Passed the Pregnant Workers Fairness Act

For the First Time Ever, the House Has Passed the Pregnant Workers Fairness Act

For the First Time Ever, the House Has Passed the Pregnant Workers Fairness Act

The bill would require employers to give pregnant employees accommodations so they can keep working while protecting their health.

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Kimberlie Michelle Durham had big goals for her career before she got pregnant. In 2015, she was a basic emergency medical technician in Alabama with plans to go back to school and become a paramedic. She loved being “out there in the field and helping people,” she said. “It was something I felt really passionate about.”

Getting pregnant was “an unexpected surprise,” she said, but she was still happy and saw no reason why it should change any of her plans. She wanted to keep working all the way through her pregnancy. “I never expected to lose my job over getting pregnant,” she said.

But “it quickly turned my entire world upside down,” she said. Unlike 30 other states, Alabama doesn’t guarantee pregnant workers the right to small changes on the job so they can keep working safely. Unable to get her employers to modify her duties, Durham was pushed onto unpaid leave and ultimately lost her job.

That could soon become a thing of the past. On Thursday, the House of Representatives overwhelmingly passed the Pregnant Workers Fairness Act, with bipartisan support. The bill would require employers to give pregnant employees accommodations, such as switching to light duty or having access to a stool to sit on or more frequent water breaks, so they can keep working while protecting their health, unless doing so would cause the employer an undue burden.

It was the first time the legislation had ever gotten a vote, despite having been introduced in every Congress since 2012. Since then, it had never made it out of committee and rarely even got a hearing, despite a huge need. Long before the issue entered the halls of Congress, A Better Balance, an advocacy group for working parents, started getting calls to its free legal clinic from pregnant people, mostly in low-wage positions, who were being forced off the job when they needed small changes to keep working. “This is an issue we heard over and over,” said Sarah Brafman, senior policy counsel at A Better Balance.

While advocates pursued a federal solution, they also pushed for change in the states, where they made more gains: 25 of the current state protections for pregnant workers were passed since 2012, all of them with bipartisan—either unanimous or near-unanimous—support. “Year after year it became more clear that states were understanding the problem,” Brafman said. And it wasn’t just blue states, but the likes of Tennessee and Texas.

Then the issue got a powerful, and unusual, ally: the business community. Local chambers of commerce have supported state-level legislation. Then, in January, the US Chamber of Commerce, one of the country’s most powerful business lobbies, announced its support for the bill. Its support was “a huge leap forward,” Gillian Thomas, senior staff attorney of the Women’s Rights Project at the ACLU, said. It sent a letter to Congress on September 14 saying it would consider how members vote on it in its annual scorecard. “Employers currently face great uncertainty about whether, and how, they are required to accommodate pregnant workers,” it wrote. The PWFA “would clarify an employer’s obligation to accommodate a pregnant employee.”

A federal law makes employers’ obligations under the law crystal-clear, potentially avoiding costly litigation. Without a standard, federal rule, employers are left to navigate the patchwork of existing laws like the Pregnancy Discrimination Act, the Americans with Disabilities Act, and state PWFAs, many of which differ from one another. Advocates also argue that it helps businesses retain pregnant employees and avoid the cost of turnover.

That outspoken support from businesses has played a role in getting congressional Republicans on board. The House bill had 18 Republican cosponsors. The issue also draws lawmakers who are concerned about infant and maternal health, as forcing women to work in unsafe conditions can lead to miscarriage and preterm birth. “The power of this issue is such that when you’re called upon to say yes or no, it’s really hard to say no to it,” noted Emily Martin, vice president of workplace justice at the National Women’s Law Center.

Still, it’s an unusual outcome and an unusual trajectory for pro-worker legislation. “We’ve gone in 10 or 15 years from virtual invisibility of this issue to…potentially remedying the problem altogether through congressional action,” Thomas noted.

For Durham, that remedy will come too late. A stretcher with a body on it weighs over 100 pounds, and her doctor told her early in her pregnancy that she should avoid lifting anything over 50 pounds. She knew it would mean she’d have to be taken off of ambulance duty for the duration of her pregnancy, but other coworkers who needed accommodations had been transferred to light-duty positions, such as dispatch, or had even had positions created for them when they couldn’t do heavy lifting. But when she asked for something similar, she was told light-duty positions were only for those who were hurt on the job, that the training for dispatch would take too long, and they couldn’t create a different position for her.

Instead, human relations sent her paperwork to go on unpaid medical leave for 90 days, during which she was barred from seeking another job or unemployment benefits. But her job was her only source of income, and the 90 days would only get her seven months in to her pregnancy. “It was a shock,” she said.

Durham contacted a lawyer, who wrote a letter to her employer. All she wanted was “to get my job back,” she said. That was five years ago. “It’s been an uphill battle ever since,” she said. Her case has still not been resolved. “My son’s 4,” she said, laughing. “It’s been a little bit of a crazy set of years.”

In the meantime, Durham suffered the financial cost of losing her income, then her job, then her career. She had to move back home when she was pushed onto unpaid leave. She was unemployed for seven months, and while she was able to stay insured through her parents because she was 26, she lost health insurance for her son, which means she’s still paying off medical bills from his birth. And she hasn’t worked as an EMT since. Instead, she first got a job in a factory and then in retail. She still has a degree, but her certification as an EMT lapsed and she would have to go back through her courses to get relicensed and recertified.

“I really wish I had been able to just keep working,” she said.

Durham’s story illustrates why more legal protections are still necessary, despite existing laws on the books and a recent Supreme Court decision addressing pregnant workers’ rights. Under the federal Pregnancy Discrimination Act, a pregnant worker is entitled to an accommodation only if other, “similar” employees are also given the same allowance. That law has proven to be lacking, though, because for years, courts across the country have determined that people who are offered accommodations after an on-the-job injury weren’t sufficiently similar to pregnant workers, as pregnancy is a “personal” condition. Under the Americans with Disabilities Act, an employee with a disability has the right to an accommodation no matter what is available to other employees unless it would cause the employer undue hardship—but only pregnant women with health issues, such as diabetes or hypertension, would qualify. Healthy pregnancies are left out.

“Neither of them provide an explicit right to accommodation,” Brafman said. “That left a real gap in the law and one that left pregnant workers really unequal and at a severe disadvantage.”

Amid that landscape, Peggy Young, a UPS employee who was denied an accommodation to switch to light duty while pregnant, sued her employer, and her case reached the Supreme Court. In 2015, the court ruled in Young’s favor.

The decision in Young v. United Parcel Service, Inc. “was absolutely a victory for pregnant workers,” Martin said. It got rid of the idea that an employer could skirt a pregnant employee’s request for the same accommodation as another by claiming she wasn’t similar to those who were injured on the job. But in its wake, some courts have created a strict standard for proving that someone’s employer has given accommodations to others, often requiring the employee to find a specific coworker who got the exact same accommodation that she is seeking. That requires knowledge of all of her coworkers and their medical conditions that many may not have access to.

The Young decision came out a few months before Durham was told she couldn’t have a light-duty position that was offered to others with on-the-job injuries, which would seem to fly in the face of the Supreme Court’s ruling. She’s not alone. A Better Balance found that in the wake of the decision, in over two-thirds of pregnant workers’ cases, courts allowed their employers to deny accommodations.

The pandemic has made the issue even more urgent. Charlotte, who withheld her last name for fear of retaliation, was pregnant and working as a nurse in a hospital when the pandemic hit. So when her doctor advised that she avoid taking care of anyone suspected or confirmed to be infected with Covid, she brought a letter to her employer asking for a change to her job duties.

Charlotte said pregnant nurses at her hospital typically wouldn’t be asked to work directly with patients with other infectious diseases, such as influenza or tuberculosis. But because at first the Centers for Disease Control said that pregnant people were not at higher risk of complications from Covid, she was told she couldn’t have her requested accommodation until she was 36 weeks pregnant. (Recent studies indicate pregnant people have more severe complications, and the CDC now says they might be at increased risk.) That was despite her employer’s providing that same allowance to elderly and other high-risk employees. A manager told her she’d be fine—that she herself had worked during the outbreaks of Ebola and West Nile Virus, and that Charlotte was more likely to get Covid at a grocery store than at work. “How do you know?” Charlotte asked. It felt “like they didn’t care about me.”

Meanwhile, as was the case in many hospitals at the time, Charlotte and her coworkers had to reuse their personal protective equipment, including wiping down and sharing PAPR respiratory protection gear that is meant to be used once per patient and per nurse. She ended up being assigned patients who were thought to possibly have Covid, although thankfully they all tested negative. When her employer put her on a shift working on the Covid unit, she refused to go in. Her employer docked her pay.

“We’ve heard from hundreds of pregnant workers who are particularly struggling due to the pandemic,” Brafman said. Workers have been denied personal protective equipment, work modifications to avoid coming in contact with the public, or transfers to less risky work. “A lot of pregnant employees are nervous,” Martin agreed. “It makes the debate about pregnancy accommodation and what we can do to ensure healthy pregnancies all the more urgent.”

The Pregnant Workers Fairness Act now heads to the Senate. It’s been introduced in the Senate with bipartisan support in years past, but hasn’t been introduced in the current Congress. Majority leader Mitch McConnell might be persuaded to bring a bill to the floor, however, by the support from Greater Louisville Inc., the Kentucky city’s chamber of commerce.

“We very much call on the Senate to also prioritize passage of the Pregnant Workers Fairness Act in 2020,” Brafman said. “Pregnant women’s health and economic security really cannot wait, especially during an unprecedented global pandemic.”

Whether or not the Senate takes the bill up this year, Martin is optimistic that it will become law in “the next year or two.” But she also noted that even as it took eight years just to get a congressional vote, the PWFA is “one of the easy ones” and only a first step. “We have a lot more to do,” she noted. “Let’s get this done and then move on to the broader landscape of reform that we really need to ensure that pregnancy and caregiving, that being a woman, doesn’t leave workers unable to support themselves.”

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