When Rebeca Macri became pregnant this past June, she was terrified that her job would put her pregnancy at risk. As a certified nursing assistant, lifting patients and heavy loads in nursing homes was part of her regular duties, and she’d had two prior miscarriages while working in the same role. So, right away, she asked her employer if she could avoid heavy lifting while she was pregnant. Her employer’s first response was to tell her to go home without pay until she could lift again and to apply for unemployment benefits in the meantime. But she had a new law on her side: the Pregnant Workers Fairness Act, which requires employers to accommodate the needs of pregnant workers. She informed her employer about the PWFA and insisted on continuing to work without endangering her pregnancy. Days later, the nursing home reversed course and granted her request.
Macri is among the first wave of American workers who have availed themselves of a brand-new civil right, which was passed by Congress in December and went into effect on June 27. It marks the first time Congress has passed new rights for pregnant people in 44 years, and it is the first major new civil right granted to Americans since the Genetic Information Nondiscrimination Act 15 years ago. “Sometimes it’s hard to put into words how incredible this is,” said Vania Leveille, senior legislative counsel at the American Civil Liberties Union, which lobbied for the bill.
“This really is a significant step towards a future in which you can have gender equality in the workplace in a real way, in a way that is not just on paper,” said Charlotte Burrows, chair of the Equal Employment Opportunity Commission, which is tasked with enforcing the law. “It’s a historic moment.” Now comes the work of ensuring that these new rights protect the people who need them and, advocates hope, change the way pregnant people are seen by their employers.
The PWFA requires employers to grant reasonable accommodations to pregnant employees unless doing so would pose an undue hardship to the employer. On August 7, the EEOC sent proposed regulations to the White House laying out its interpretation of the details of the law. It listed a number of “predictable assessments,” or simple modifications, that “will, in virtually all occasions,” not be found to “impose an undue hardship,” such as carrying water, taking more restroom or food breaks, and having the ability to sit or stand. Other accommodations can include anything from a better-fitting uniform to light duty assignments to time off for prenatal appointments as long is there is no undue hardship for the employer. Because the law covers not just pregnancy itself but also related conditions, the EEOC confirmed that it allows people to take time off to get an abortion, to recover from a miscarriage, to take unpaid leave after childbirth, and to deal with postpartum depression. (Predictably, the US Conference of Catholic Bishops has already come out in opposition to the application of the law to abortion.) Employers with points-based attendance policies or that use productivity monitoring can’t penalize pregnant workers for taking breaks or leave as part of their accommodations.
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There is no waiting period for the rights under the PWFA; any worker is due accommodations, no matter how long their tenure at their job. The law even applies to prospective employees who need accommodations in the application process. It also applies to federal employees who weren’t covered by versions of the law previously passed by 30 states and Washington, D.C. It doesn’t apply, however, to workplaces with 14 or fewer employees, although some state-level laws do.
An employer can’t unilaterally decide what accommodation to grant, or to push a pregnant employee onto unpaid leave. Instead, employers must engage in the same interactive process of figuring out what will work, for both them and their employees, that is laid out in the Americans with Disabilities Act. The EEOC’s proposed regulations say that employers can’t require medical documentation, such as a doctor’s note, when the need for an accommodation is obvious, nor for certain accommodations like carrying water, taking more bathroom or food breaks, the ability to sit or stand while working, or for lactation needs. An employer also can’t retaliate against an employee for asking about or asserting their rights.
The EEOC regulations will now go through a review and comment period, and the agency has until December 29 to finalize them. Dina Bakst, copresident of A Better Balance, a nonprofit that combats pregnancy discrimination, said her organization will “offer our insights and suggest areas where the rules can be clarified and improved,” but noted that “the agency has given us a really strong starting point off which to work.”
The Pregnancy Discrimination Act, passed in 1978, requires employers to treat pregnant employees the same as other employees. But when Peggy Young sued UPS after it denied her request to switch to light duty while pregnant, the Supreme Court issued a ruling that, while siding with her, led to a complicated legal regime that rarely resulted in wins for pregnant workers. Pregnant workers without a disability covered by the Americans with Disabilities Act were forced to find a nearly identical coworker who had already been offered the accommodation they were seeking. After the ruling, courts ruled in favor of employers over pregnant employees in over two-thirds of cases. The PWFA “really flips the script and says to employers, ‘You have to do this unless it would impose a hardship, full stop,’” said Gillian Thomas, senior staff attorney at the ACLU Women’s Rights Project.
The law is having a huge impact just a few months in. “Our call volume has skyrocketed,” said Marcella Kocolatos, managing attorney of direct legal services at A Better Balance. In the first week after the law went into effect the number of calls to the nonprofit’s free legal helpline tripled, with most of the callers asking specifically about the PWFA and how it could protect them. “These are really not hypothetical questions,” she said. The same has happened on the hotline run by the Center for WorkLife Law, which has seen a “sharp increase in calls,” said Deputy Director Liz Morris—so much so that the staff person who runs the hotline, among other duties, has had to devote all of her time to it.
There is also a shift in the kinds of calls Kocolatos is getting. Before the PWFA went into effect, many pregnant workers were protected by state laws, but callers to A Better Balance generally weren’t aware of those protections. The power of a federal law is clear: People are now calling asking specifically about the PWFA—including those who live in states that previously had their own versions. Most callers don’t have legal action on their minds; they don’t have time. They are looking for a quick solution that will allow them to continue working and carrying a healthy pregnancy to term. The law should now make that possible.
And, says Bakst, it’s working. “We’re already seeing employers change their tune when workers assert their rights,” she said.
For Rebeca Macri, the potential impact of the PWFA is immense. Her first miscarriage happened about eight years ago, when she was two weeks into a new job. Directed to lift up a patient so they could eat, she refused, fearing for the safety of her pregnancy. “They said, ‘Clearly you don’t want your job if you can’t do this,’” she recalled. So Macri complied and immediately started bleeding heavily; she eventually lost the pregnancy.
Three years later, she had a healthy pregnancy and gave birth to her now-5-year-old daughter. Then she got pregnant this past January. One day when she was working a short-staffed shift, a patient kept getting out of her wheelchair, so Macri had to keep lifting her to put her back in. That night, Macri started bleeding, and at her next ultrasound she was told there was no heartbeat. Her employer offered no leave for miscarriage, so she had to work through it, “which was absolutely horrendous,” she said. “I was emotional, very emotional.”
When she got pregnant again this June, Macri told her employer that she wanted to avoid lifting for the remainder of her pregnancy, but her request was denied. But that wasn’t the end of Macri’s advocacy. She continued working; on June 27, the PWFA went into effect. A friend sent her an Instagram post from A Better Balance with information about it. “I started clicking on everything,” she said. At her next shift, on June 30, she told her human resources representative about the new law, and when she didn’t know what it was, Macri told her to Google it. That’s when she was told to go home early and file for unemployment because she would be taken off the schedule. “I’m flipping out, because I have $500 left in my paycheck,” she said. “For me, being independent and having a household and providing for my children, it’s who I am. So to be told that potentially could be taken away from me, I don’t sit well with that.”
But the following Monday she got a call from her employer telling her she was approved not just to continue working without heavy lifting but also to be paid back for the hours she was docked when she was sent home. “I went back to work, and it’s been fine ever since,” she said. She hasn’t had to lift anything heavy since returning, instead getting patients water and food, making their beds, assisting as they shower and dress, and pushing them in their wheelchairs. She’s able to “protect my health and still pay my bills,” she said. She plans to keep working until her delivery.
Knowing that she had the right to work accommodations, “I felt as if I had a friend beside me that was going to support me,” she said.
Calls to A Better Balance’s hotline reveal the early impact of the law. The group heard from a pregnant woman who works at a call center and hasn’t been able to get breaks throughout the day to eat enough food. “Being able to tell her, ‘The law covers you,’ was just so gratifying,” Kocolatos said. Another caller was hoping to work from home temporarily until she had some relief from constant morning sickness. Another caller was too new at her job to qualify for unpaid postpartum time off under the Family and Medical Leave Act, which applies only to employees who have been at their jobs for a year, excluding 44 percent of workers, and was told she would have to be back at work after two weeks. “It was very exciting for me to be able to tell her, ‘Well, actually it doesn’t matter that you haven’t been at your job for a year,’” Kocolatos said. Unpaid leave to recover from childbirth, typically six weeks for a vaginal delivery and eight weeks for a C-section, can be an accommodation under the PWFA.
“Having the law now so much more clearly on the side of women in that situation is really just a game changer,” Kocolatos said. Morris, of the Center for WorkLife Law, concurred. Writing letters to employers demanding changes is “going to be so much easier,” she said. “The letters are going to write themselves.”
The challenge will be connecting the dots between a new right on paper and the way employers treat their pregnant workers, particularly the workers who are least able to assert their rights—undocumented immigrants, people who speak limited or no English, low-wage workers who can’t afford to lose even a single day’s pay. According to a survey by AbsenceSoft (a leave-and-accommodations-management software company) conducted before the law went into effect, 43 percent of employers weren’t familiar with or only somewhat familiar with the PWFA, and half had no formal process in place to deal with requests for accommodations.
“It’s thrilling it’s now in effect, but our work is far from over,” Bakst said. “Laws are only meaningful if workers know their rights and feel empowered to exercise them.”
A Better Balance has launched a digital “know your rights” campaign, which includes a landing page on its website with links to template letters employees can use to tell their employers about the law and request accommodations. That resource has already been viewed by millions of people. Both A Better Balance and the Center for WorkLife Law have been educating lawyers and doctors; A Better Balance held webinars for both groups explaining the law and the new rights so they understand how to help workers. It’s also partnering with unions and worker groups to get the word out directly to employees. Morris has been working with the American College of Obstetricians and Gynecologists so that they “know what the law provides and what the role of a prenatal provider or postpartum care provider [is] in ensuring that people get their legal rights,” she said.
The hope is that, in most cases, employees and employers will figure out solutions on their own. But in the case of bad actors, A Better Balance is also prepared to support lawsuits “to enforce and expand the law,” Bakst said. The Center for WorkLife Law is working with attorneys to “ensure that the law develops favorably in the courts” and follows the intention of the original bill.
Indeed, the Equal Employment Opportunity Commission has already started receiving charges of discrimination under the PWFA, Charlotte Burrows, the chair of the commission, said. She added that the agency started preparing for its new enforcement duty immediately after the PWFA passed last December, offering educational events around the country, first talking to employers to make sure they knew it was coming, then reaching out to federal agencies, given that their employees would now be covered—and the government is the largest employer in the country. The EEOC produced its own document outlining the new rights and has held webinars for employees. The agency also took to the radio, joining national shows in both English and Spanish and, as of early August, reached about 37 million listeners. Not all Americans can be reached with a website, Burrows explained. “We wanted to make sure we spread the news far and wide.”
The agency also had to train its staff on the law “to make sure we were internally fully up to speed,” she said.
Once the EEOC regulations are finalized, it’s almost certain that there will be employer pushback, particularly about what counts as a reasonable accommodation and what counts as an undue hardship. The law also has a carve-out for narrow religious objections, and “I think we can expect that that envelope will be pushed,” Thomas said. Religious employers may object to accommodating a pregnant employee who is, say, unmarried or in a gay relationship, and it’s not yet clear whether those objections will hold up in court.
Even with all the work ahead, to say that the moment is gratifying for advocates is an understatement. Gillian Thomas says that she hopes the PWFA will push employers and coworkers alike to stop seeing pregnant people as “delicate flowers who can’t do anything” and “destigmatize pregnancy as this thing that makes people incapable.”
“Ultimately, what we want to do is improve real people’s lives and make sure that real people have the protections and civil rights that they need and that they deserve,” Leveille said. “That’s what the Pregnant Workers Fairness Act did.”
