Low-wage, blue-collar workers who lift heavy objects, stand all day or work near hazardous chemicals will benefit most from the recently enacted Pregnant Workers Fairness Act (PWFA), employment lawyers said.
The PWFA requires employers to provide reasonable accommodations to workers so they can keep working while they are expecting. In general, white-collar workers traditionally have had greater flexibility than blue-collar workers when it comes to sitting, working from home or taking breaks.
"If you were the senior vice president or even the secretary in the front office, they probably let you rest or work from home or do whatever you need," said Scott Warrick, a Columbus, Ohio-based employment lawyer and author of Solve Employee Problems Before They Start: Resolving Conflict in the Real World (SHRM, 2019). "But if you're on the factory floor, traditionally you haven't been getting these kind of rights."
The law, which took effect on June 27, is administered and enforced by the Equal Employment Opportunity Commission. Companies with 15 or more employees "must make reasonable accommodations to the known limitations related to pregnancy, child birth or related medical conditions" unless accommodations impose undue hardship on the operation of the business. Those accommodations could mean anything from a seat to a weight limit on lifting to a private place to nurse or pump milk.
[SHRM members-only sample policy: Reasonable Accommodations for Pregnant Workers]
Previously, pregnant employees were only afforded special accommodations under the American with Disabilities Act (ADA) if they had a pregnancy with medical complications, Warrick said. The typical pregnancy without complications did not qualify for accommodations until this new law was passed. He calls the new law "the little sister to the ADA," meaning that employers should approach accommodations for all pregnant workers, whether in a white-collar or blue-collar job, the same way they would approach accommodations for people with disabilities.
"I think it's going to close the gap for a lot of low-wage earners who are in the terrible position of having to choose between their maternal health and their job," said Ann-Marie Ahern, employment lawyer at McCarthy, Lebit, Crystal & Liffman Co. in Cleveland. "There are a lot of women who have basically been going against doctors' advice because they're afraid of losing their job." She has seen the issue arise in those working in fast food, retail, warehouses and nursing homes.
Sarah Brafman, national policy director for A Better Balance, a national nonprofit advocacy organization, agreed. She said the lack of a law in the past "really put people in an impossible position … of being forced to leave [work] at a time when they really need a paycheck. She said the majority of complaints the group has received has been from low-wage workers, predominantly employees of color, but some also have come from white-collar workers.
Brafman said employers are now obligated to have a conversation—engage in an interactive process, as is also required under the ADA—with any pregnant employee who approaches them with an accommodation request. "It's not necessarily the case that the worker gets the exact first accommodation they asked for, but the employer needs to work with them," she noted.
She said accommodations are worker-specific, not one-size-fits-all. "It might include a reprieve from lifting or additional breaks to rest or drink water. It might include a temporary transfer to another position, if their current position is not working out with their pregnancy."
Ahern recommended that employers consult with a lawyer on how to approach the new law.
Warrick advised employers to consult with their human resource departments and train their managers to comply with the new law and work with pregnant workers about addressing their accommodation needs. "Without a doubt, 90 percent of all of the lawsuits out there, they come about because the managers are not trained," he said.
He also has counseled some employers about providing private places to pump milk. Employers sometimes suggest unworkable solutions such as a bathroom stall. "No, you can't stick them in a bathroom," he tells them. (The federal Providing Urgent Maternal Protections for Nursing Mothers Act, which took effect April 28, also addresses break time and space requirements for pumping.) Warrick recommends that if employers don't have the space or funds to create a dedicated room, they can spend a few thousand dollars on the kind of reusable privacy pod that can be found in airports.
Given the proliferation of online reviews of workplace conditions on platforms like Glassdoor, it's more important than ever to have managers who show empathy toward workers, including those who are pregnant, Warrick said.
He often shares a number from the U.S. Bureau of Labor Statistics. "There are 1.7 jobs in this country for every unemployed person," he said. "I tell my clients these people are not replaceable."
Cristina Rouvalis is a freelance writer based in Pittsburgh.