ACLU Applauds EEOC Pregnant Workers Fairness Act Rules, Urges Additional Key Protections

October 11, 2023 9:39 am

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WASHINGTON – The American Civil Liberties Union applauds the Equal Employment Opportunity Commission’s proposed regulations strengthening the rights of workers under the Pregnant Workers Fairness Act (PWFA), including access to abortion and the full range of related health needs before, during, and after pregnancy.

Passed by Congress and signed by President Joe Biden in December 2022, PWFA mandates “reasonable accommodations” for workers who have limitations caused by pregnancy, childbirth, or related medical conditions unless providing them would impose an “undue hardship” on their employer. In August 2023, the EEOC published a set of proposed rules for employers and federal agencies implementing PWFA defining reasonable accommodations and ensuring employers understand their obligations under the law.

In a public comment submitted on October 10, the ACLU applauds many of these comprehensive recommendations and urges further action protecting the safety and equality of pregnant workers recovering from childbirth and having related medical conditions pre- and post-partum.

“For millions of U.S. workers, PWFA promises to remedy the legal loopholes of the past, and ensure no worker will have to choose between their paycheck and a healthy pregnancy,” said Gillian Thomas, Senior Staff Attorney at the ACLU’s Women’s Rights Project. “The proposed rule is a fantastic step towards that goal, recognizing the full scope of workers’ health needs throughout their reproductive lives. We’re hopeful our submission, with its recommendations for clarifying and strengthening certain provisions, will help the Commission fulfill its mandate of assuring equal opportunity in every workplace.”

In its submitted comment, the ACLU:

  • Commends the EEOC for recognizing that abortion has for decades been approved under the law as a “related medical condition” to pregnancy that entitles workers to reasonable accommodations, including time off to obtain abortion care, and recommends additional protective measures to assure workers’ ability to make private medical decisions;
  • Recommends expanding the definition of “related medical condition” to include perimenopause and menopause;
  • Urges the EEOC to minimize the burden on workers to provide supporting documentation when seeking accommodation, and to impose additional privacy protections;
  • Strengthen the rules regarding leave as a reasonable accommodation, including addressing the distinct harm of punitive “no-fault” attendance policies on pregnant workers;
  • Clarify employers’ obligation to recognize workers’ need for accommodation and initiate the statutorily-mandated “interactive process” to identify mutually-satisfactory reasonable accommodations;
  • Broaden the list of accommodations that are specifically recognized as not imposing an “undue hardship” on employers and therefore should generally be granted, including time off for regular pre- and post-natal medical appointments, modifications to dress codes, and providing personal protective equipment;
  • Make explicit the interaction between PWFA’s protection for lactating workers and the protections afforded by the newly enacted PUMP For Nursing Mothers Act.

Women make up nearly 60% of the workforce, and 85% of them will have at least one pregnancy during their working lives. The majority of these women work until late in their pregnancies and return to their jobs after having their babies. Under the pre-PWFA landscape, although the majority of pregnant workers report needing at least one form of modest accommodation, such as more frequent bathroom breaks or a schedule change, roughly a quarter report being unable to obtain them; for workers in physically demanding, low-wage jobs like retail, health care, and custodial work – disproportionately held by Black and brown women – those numbers are higher, and the potential adverse health outcomes more acute. Workers also may need workplace accommodations for conditions pre- and post-partum, including treatment for infertility and postpartum depression.

Under current law, workers needing such accommodations are only entitled to the modifications extended to others deemed “similar in their ability or inability to work,” a limitation that burdened workers with justifying their “similarity” to their colleagues, and all too often resulted in their being denied the changes they needed to stay healthy on the job – resulting in their being fired, forced to quit, or put on unpaid leave.

While thirty states and several localities currently have versions of the PWFA on the books, the EEOC estimates that roughly 1 million additional workers nationwide now will enjoy the right to reasonable accommodation.

The PWFA’s passage marked the culmination of a decade of advocacy by the ACLU and its coalition partners and was enacted with broad bipartisan support, including from the U.S. Chamber of Commerce and the United States Conference of Catholic Bishops.

The ACLU’s submitted public comment can be viewed here.

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