In June, the federal government as the nation’s largest employer will be legally required, like all private and public entities, to provide reasonable accommodations to pregnant employees in the workplace.
The Pregnant Workers Fairness Act fills gaps in other anti-discrimination laws that protect employees from being treated differently because of a disability, which can sometimes arise in pregnancy.
Pregnancy is not considered a disability in itself, according to the language of the Americans with Disabilities Act, though some pregnancy-related conditions may fall under these protections. The new law aims to further commit employers to ensuring that pregnant workers do not slip through the cracks.
For the federal government, this shouldn’t be a big lift, as many of the possible accommodations could be low-cost or no-cost, though each arrangement should be tailored to the employee, the job and the situation surrounding the pregnancy, legal experts said.
Chris Gantt-Sorenson of the Haynsworth Sinkler Boyd law firm said that, in theory, it could even be easier for the federal government to take up this law because it’s used to providing similar accommodations under the ADA.
According to the Equal Employment Opportunity Commission, more than 30 states and cities have laws that provide accommodations for pregnant workers. The new law further ensures that protections are not interpreted differently from place to place and employer to employer.
“This is a good law, even for the states that have a comprehensive law on this already,” Gantt-Sorenson said. “This is a good law to drive the point home, emphatically and unequivocally, that not only pregnancy discrimination, which that’s been in place already with the Pregnancy Discrimination Act, but also failure to accommodate a pregnant employee, is illegal.”
“This new law ensures that millions of pregnant workers, and those who have recently given birth, can protect their health without risking their paycheck,” Everett Kelley said, national president of the American Federation of Government Employees, in a statement this week. “It is a major milestone for gender, racial and economic justice across the country.”
It remains to be seen what the EEOC will hand down in terms of further guidance on the law, which does not specify the exact types of conditions that will be deemed a “known limitation” or what specific kinds of accommodations are covered.
Closer parking, flexible hours
A House Committee on Education and Labor report included some examples of accommodations, like additional bathroom breaks between calls or appointments, or the ability to sit, receive closer parking, take time off or have flexible work hours.
Cortlin Bond, an associate attorney with Bradley Arant Boult Cummings LLC, said that telework could be considered an accommodation. And though some workers may be on a hybrid schedule these days, not all jobs can be done from home, and this law is necessary to fill some gaps for pregnant employees who work onsite, she said.
It’s also the case that accommodations should be tailored to each situation because what may be a reasonable accommodation for one employee may not be for another, Bond said.
As the federal government is still determining what its future telework posture will look like, telework and remote work allowances may change, though Gantt-Sorenson said a workplace policy set by an employer is not going to unilaterally exclude telework as a separate reasonable accommodation under the law.
First introduced by Sen. Bob Casey, (D-Pa.) in 2012, the act was included in the 2023 appropriations act.
Earlier initiatives aimed at protecting against discrimination based on pregnancy date back to 1978, when Congress passed a law banning discrimination on the basis of pregnancy, childbirth or related medical conditions. However, that law doesn’t go into detail about giving employees the resources they needed on the job to continue working while carrying a child.
Today, nearly 70% of women work during their pregnancies, according to the University of Massachusetts-Amherst. Contrast that with the fact that nearly 1 in 4 mothers have considered leaving their job due to “a lack of reasonable accommodations or fear of discrimination during a pregnancy,” there was a real need for supplemental legislation, according to the Bipartisan Policy Center.
At the federal level, workforces are governed by merit system principles, which in a nutshell say “[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management.”
Lawmakers and advocates said this bill takes that one step further.
“The Pregnant Workers Fairness Act should have and could have passed overwhelmingly long ago with an up or down vote,” said Louisiana Sen. Bill Cassidy in a statement in December. “Regardless, this amendment ensured pregnant mothers will have the workplace accommodations they need. This is pro-mother, pro-life and pro-family.”
The act officially takes effect on June 27.
“It important to remember that a pregnant worker does not mean a worker who is not going to be as devoted to their career [or] their job,” Gantt-Sorenson said. “That’s an easy mistake for many people to make, and it’s still happening and shouldn’t be. No employee should ever be judged on that basis.”
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.