On Monday, the Equal Employment Opportunity Commission finalized the rules for the recently passed Pregnant Workers Fairness Act. Although the law has been in effect since June 27, 2023, the agency’s regulations clarify exactly what new rights employees are entitled to and what employers must do under the law. The rules will go into effect in about 60 days.
For pregnant workers, “it’s going to really take away some of that anxiety,” EEOC Chair Charlotte Burrows told The Nation, “because there will be clarity about what your rights are.”
Nearly 85 percent of women will become mothers during their working lives. And yet discrimination against pregnant workers is incredibly common, showing up in both well-paid law-firm and Wall Street jobs and service-sector work like fast food and retail. Pregnant workers, particularly those in low-wage industries, often need some sort of modification to their jobs so they can keep working while protecting their health and the health of their pregnancies; before the PWFA was passed, such requests were often denied. Many people were simply fired instead of given simple accommodations.
That should now be a thing of the past. “Nobody should be in the position of losing their job or risking their health just because they’re pregnant or recovering from childbirth or dealing with a related medical condition,” Burrows said. The PWFA ensures that an employer almost always will have to grant some straightforward modifications, such as the ability to sit or stand while at work, carry a water bottle, and take more restroom breaks. Workers can also request things like better-fitting uniforms and light duty assignments. But it also has other requirements that are more far-reaching. In a country in which only 27 percent of Americans get paid family leave, the PWFA opens up a brand-new avenue for workers to secure time off for pregnancy related needs—both before giving birth and afterward—without risking their jobs.
“Knowing you’re not going to lose your job for taking time to recover from childbirth is just enormously important,” Burrows said.
Even before the rules were finalized, the PWFA had helped people like Kirsten Terrill, who works part-time at a community college in Arizona. Because she’s not a full-time employee, she isn’t entitled to unpaid leave under the Family and Medical Leave Act. Although the 1990s-era law mandates 12 weeks of unpaid time off for the arrival of a new child, an employee’s own serious illness or injury, or a loved one’s illness or injury, there are a number of restrictions: Workers have to work for an employer with 50 or more employees and have been at the job full-time for at least 12 months. The restrictions leave nearly half of all Americans ineligible, and they exclude even more low-wage workers and women of color, because they’re more likely to work part-time jobs. Before the PWFA, one in four employed mothers went back to work two weeks after childbirth or earlier.
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But under the new law, workers with physical or mental limitations related to pregnancy or childbirth can request unpaid time off as an accommodation. The PWFA has no waiting period: It kicks in as soon as someone applies for a job. It also covers employers with 15 or more employees, the same threshold for other civil rights laws. When Terrill became pregnant, she called the advocacy organization A Better Balance and received information about the PWFA’s protections. She was able to get her employer to give her two months off after she delivers her baby in May. She’s also been able to talk to her boss about flexibility once she comes back to work, including working remotely and for fewer days but with longer hours.
“Knowing that I have PWFA to support me in my workplace has really allowed me to relieve stress I may have felt otherwise,” she told A Better Balance. “I believe PWFA is incredibly important in supporting new families and those who want to start a family and hopefully in the future the government will implement even more legislation to help families.”
The final rules “provide support to workers who are dealing with employers who may not be familiar with the law,” said Dina Bakst, cofounder and copresident of A Better Balance. According to the EEOC’s final rules, covered accommodations under the PWFA include job-protected, unpaid time off for limitations arising from conditions related to pregnancy that include prenatal appointments, recovery from childbirth, lactation hurdles like mastitis, postnatal checkups, and postpartum depression. “A lot of those things [are issues] that people just had to suffer through or maybe even got fired for needing an accommodation,” Burrows noted. It may also apply to menstruation and could even apply to menopause, although the rules do not directly mention either. The law also protects a worker’s need for unpaid leave to deal with miscarriage, stillbirth, and getting an abortion. The latter has become more important thanks to state abortion bans in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022; the share of people who have had to travel to get an abortion has nearly doubled.
“Leave as a reasonable accommodation is a critical piece of this law and of effectuating its purpose to ensure that people don’t lose their jobs because of pregnancy,” said Liz Morris, deputy director of the Center on WorkLife Law. It is “one of the biggest gifts of this law.”
While the PWFA doesn’t require employers to pay workers when they take time off, it does say that workers must be allowed to use any paid-leave benefits available to them and other non-pregnant employees such as sick or vacation time. They are not, however, necessarily guaranteed the continuation of their health insurance as they are if they take FMLA leave. Workers can take leave under the PWFA intermittently, not just in large chunks, when, say, they have to go to the doctor for an hour. Employers must offer these accommodations unless they can prove that this would pose an undue hardship, and they can’t simply assert that it would cause an undue hardship without offering evidence. Workers are also protected from retaliation if they ask for accommodations. Unlike the laws previously passed by 30 states and Washington, DC, the PWFA covers federal employees, but some of those state laws have protections that exceed other aspects of the federal law, particularly by covering people at smaller employers.
Typically, the lowest-income workers have the least access to time off for these kinds of needs. One in five workers who earn the lowest 10 percent of wages don’t get any unpaid family leave, which is the case for just 6 percent of those earning in the highest 25 percent of wages.
“Of course we want real paid leave,” said Dawn Huckelbridge, director of Paid Leave for All. But, she added, expanding access to job-protected unpaid leave is vitally important in the meantime. “Having access to leave for prenatal and postpartum conditions can mean not just financial security or survival but literally life or death.” Over half of maternal deaths happen in the weeks after childbirth, but someone whose boss is threatening to fire them if they don’t immediately return to work has few options to protect their health without the protections of the PWFA.
The PWFA’s leave accommodation can also help address issues like postpartum depression, which affects about 13 percent of women. While medical treatment has recently been developed to treat it, “so often it has to do with simply having access to time and care.”
“This is a really monumental step,” Huckelbridge said. And, she hopes, it can be “part of a greater cultural and policy shift toward actually valuing women’s work and lives.”
The final regulations and the effects the law is already having on pregnant people and their families are “exactly what we hoped for and why we fought tooth and nail and didn’t give up when it was really hard,” Bakst said. Before the final rules, A Better Balance and the Center for WorkLife Law were getting calls from workers whose employers were still requiring doctor’s notes for small needs like extra breaks or taking months to respond to an accommodation request. But the final regulations say employers cannot request medical paperwork for accommodations such as carrying a water bottle, having more breaks for eating or going to the bathroom, sitting or standing more often, pumping or nursing while at work, and other needs that are “obvious” and “known.” An employer also can’t ask for a doctor’s note if it isn’t required for non-pregnant workers—for example, if other employees don’t need to provide a note when attending a medical appointment or taking a few days off for illness—and when an employer asks for notes, it can only request the minimum documentation necessary. Employers must respond to accommodation requests in a timely manner—unnecessary delays risk being penalized as if the request is outright denied.
Employers will have to update their policies and procedures to comply with the final rules. Before the rulemaking was complete, the EEOC wasn’t able to answer many of the questions it got from employers and employees about the new law, but now it wants to do what it can to “make it easy to comply,” Burrows said. “We tried very hard to have the rule be as straightforward and accessible as possible.” Along with more plain-language guidance documents the EEOC can now put out with the final rule in place, “hopefully that will really help people comply in the first instance and make it easier on everyone.”
“The fact that you can get pregnant should not mean that you have an additional economic burden,” Burrows said. “That should not be a barrier to your equality in the workplace.” Eventually, she hopes, pregnancy can be “seen as something that’s just part of life, part of work life, important to society, and therefore we need a workable and sensible way to approach it.”
