Senate Democrats are currently sitting on a bill that has the votes to pass if brought to the Senate floor, according to advocates with direct knowledge of the situation, and would provide meaningful relief to thousands of pregnant workers across the country. The Pregnant Workers Fairness Act, which would require employers to offer reasonable accommodations to pregnant employees unless they pose an undue hardship—light duty assignments, more frequent bathroom breaks, unpaid leave for doctor’s appointments or recovery from childbirth, even things as small as a stool to sit on or the ability to carry a water bottle—has enough support from both Democrats and Republicans to pass the chamber, and the House passed the bill in May 2021. “The Senate could pass it today,” said Dina Bakst, co-president of A Better Balance, who has been advocating for the bill. But the bill is still awaiting a vote, and advocates say time is running out.
For Bakst, it’s a sign of how little Congress is prioritizing its female constituents. “Congress has done nothing for women,” Bakst argued. The provisions for childcare, paid leave, and home health care in Build Back Better were stripped out of the reconciliation package that has now passed the Senate and the House, and Democrats have failed to muster a robust response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the legal right to abortion in Roe v. Wade. “Why aren’t pregnant women a priority on the heels of losing our reproductive freedom?” asked Sonia Ossorio, president of NOW New York. “At this moment in history it is not acceptable to tell women to wait.”
“The American people expect Congress to get results, not to sit on bills they can pass,” Bakst said.
If the Senate fails to act, and the bill dies, it will deny relief to people like Kimberlie Michelle Durham. She got pregnant in 2015, a happy but unexpected surprise, while working as an emergency medical technician in Alabama. It was a job she loved and was “really passionate about,” she told me in 2020, and one she planned to keep doing all the way through her pregnancy. But when her doctor told her early in her pregnancy that she should avoid lifting anything over 50 pounds and she asked her employer for a light duty assignment, her employer told her such work was only available for people hurt on the job.
Instead, her employer pushed her onto unpaid leave for 90 days. She eventually lost her job, and after seven months unemployed, began working at a factory and then in retail. She had to move back home and lost health insurance for her son, leaving her saddled with medical debt from his birth. “I really wish I had been able to just keep working,” she told me.
Democratic Senators have tried different methods for passing the PWFA since it passed the House last year, such as attaching it to other priorities like the National Defense Authorization Act or omnibus fiscal package, but Republican opposition in the House made that impossible. They also tried to move the bill with unanimous consent, which requires approval from all 100 senators, but Senator Rand Paul objected and that failed, too.
But now at least 13 Republicans have confirmed their support for the bill, and with that backing it has more than the 60 votes it needs to become law, according to advocates. “The Pregnant Worker Fairness Act passed out of my HELP Committee on a strong bipartisan vote,” said Senator Patty Murray, chair of the HELP Committee and a supporter of the bill. “This is a critical bill—because no one should be forced to decide between a healthy pregnancy and staying on the job—so I’m pushing hard for a final vote in the Senate as soon as possible, and to get it to President Biden’s desk.”
There are no other procedural hurdles in the way of a floor vote, and Senate Majority Leader Chuck Schumer even used Rule 14 to begin the process of putting it directly on the floor on June 16. “It’s as ready as any bill can be,” Ossorio said. Advocates felt several times over the course of 2022 that it was about to get a vote, only to be disappointed.
“It is clear that the necessary path forward for the bill now is for Senator Schumer to bring it to a floor vote, which he could do at any time,” Bakst said. But she and the other organizations in the coalition pushing for it have been given no information about when it will happen. “Every day Senator Schumer holds this up, more vulnerable workers are forced to put their health at risk,” she said.
In response to a request for comment, a spokesperson for Sen. Schumer said, “Senator Schumer is strongly supportive of this legislation to protect pregnant workers and is seeking to pass it as soon as possible.”
The Pregnant Workers Fairness Act is more than 10 years in the making. A Better Balance started getting calls over a decade ago to its free legal hotline from pregnant workers who were being penalized at work when trying to follow their doctors’ orders. The existing Pregnancy Discrimination Act requires employers to treat pregnant workers the same as similar but non-pregnant coworkers, and the Americans with Disabilities Act requires them to offer reasonable accommodations for disabilities that limit life activities. But healthy pregnancies that didn’t cause disabling conditions—but still needed small but specific changes at work—were “falling into the gaps of existing laws,” Bakst said.
The federal Pregnant Workers Fairness Act was first introduced in Congress in 2012. But knowing that Congress moves slowly, Bakst knew her organization had to “take our fight to the states,” she said. In 2013 New York City passed its own version of the law, and by 2014 ten states had joined. Today 30 states have passed similar legislation, often on a bipartisan basis. The laws have helped to demonstrate that a federal solution covering all Americans can work an economic and health basis.
Durham’s home state of Alabama is one of the holdouts, which is why she was left with few options. Advocates had hoped that a 2015 Supreme Court case, Young v. United Parcel Service, Inc., would resolve the issue and give pregnant workers clearer protections. Peggy Young, a UPS employee, sued her employer after it denied her request to switch to light duty while pregnant, as it had done for workers who needed the accommodation for other reasons.
But instead, while the court’s ruling that UPS had violated her rights represented a victory for Young herself, it created a new and high barrier for pregnant workers seeking accommodations by requiring that they find a nearly identical coworker who has already been offered the same thing they need. In the wake of Young v. UPS, courts ruled in favor of employers in over two-thirds of pregnant workers’ cases.
That confusing landscape is part of what brought unlikely supporters to support a federal PWFA. Employers want clarity on what is and isn’t required of them when employees become pregnant, prompting the Chamber of Commerce to support the bill in early 2020. The law is also intended to help pregnant workers stay on the job, a selling point for Republicans who want to encourage motherhood as well as labor force participation.
After being introduced every congressional session since 2012 without a full vote, in late 2020 the House passed the bill on a bipartisan basis for the first time. It had 18 Republican cosponsors.
The pandemic has only increased the urgency for the PWFA to become law. During the pandemic, it became clear that pregnant people are more likely to get severely sick with Covid and that Covid can increase the risk of pregnancy complications, such as preterm delivery or stillbirth.
But pregnant workers have struggled to protect themselves from Covid on the job. Sophia Lopez was two months pregnant when the pandemic began, but “nothing changed” at the McDonald’s where she worked in California, she told me in June 2020. She was afraid to go to work but couldn’t miss her paycheck. Her doctor told her that she should take extra precautions, but she wasn’t able to change anything at work other than to wear gloves and a mask. Charlotte, a hospital nurse, was also pregnant when the pandemic began, so her doctor advised that she avoid caring for anyone suspected or confirmed to have Covid. But she was told she couldn’t have her accommodation until she was 36 weeks pregnant. In the meantime, she refused to go in for shifts when she was scheduled for the Covid unit, resulting in the loss of pay.
“Our hotline was ringing off the hook,” Bakst said. If a worker lived in a state with a PWFA law on the books, lawyers were able to advocate for her to be able to, say, continue working from home instead of going into work or move to a role that isn’t customer facing. But in states without one there was “very little recourse,” she said. Those calls are still pouring into the hotline, she said.
Time is running out on the bill. Senators come back from spending time in their home districts to Washington after Labor Day, and the lame duck session after the midterms begins in early November. Waiting until the lame duck is unnecessarily risky, advocates warn. Some supportive lawmakers could change their minds or even lose their seats and fail to show up. There will be many competing priorities. And the Senate might end up controlled by Republicans. The same calculation was made with the Paycheck Fairness Act, which had the votes to pass in 2010 but never made it to the floor. It fell two votes short in that year’s lame duck session.
“Chuck Schumer knows well and good that by not bringing it to the floor now he may lose the opportunity to do it anytime in the near future,” Ossorio said.
And while floor time is precious and scarce in the Senate, lawmakers have made time for many other priorities. In June they passed gun control legislation, and last month they passed a bill to subsidize domestic semiconductor manufacturing. This month the Senate passed bills to address mental health among Capitol police officers, help veterans who were exposed to burn pits, and ratify NATO membership for Finland and Sweden, and it also passed the Inflation Reduction Act, the Democratic reconciliation package.
“When Senate leaders say there’s no time, that’s simply not true. There is time. They’ve been bringing bills to the floor,” said Vania Leveille, senior legislative counsel at the ACLU. “The reality is this isn’t a priority.”
Democrats have also held votes on a number of bills meant to codify reproductive freedom after Dobbs, including enshrining a right to contraception and protecting doctors who perform abortions, all of which have failed after Republicans objected. “It’s not enough to bring reproductive rights bills to the Senate floor that everyone knows will fail but ignore or deprioritize reproductive justice bills like the PWFA that have the votes to pass,” Leveille said. “It’s not enough to say, ‘Oh we care about this but our hands are tied.’ In this case your hands aren’t tied and you’re still not moving.” Democrats may even be hesitant to bring the bill to the floor and have it pass with Republican support because it would hand Republicans a talking point on reproductive rights.
But advocates argue that’s no excuse not to act now. “Failing to deliver would be unconscionable,” Bakst said.