After 10 years of effort, the Pregnant Workers Fairness Act (PWFA), which would mandate reasonable workplace accommodations to allow pregnant workers to safely work, is likely to pass. The Senate voted 73-24 to add it as an amendment to the must-pass omnibus government spending measure, and the House will shortly consider it. If both pass the omnibus, President Joe Biden will receive the PWFA.

Why is the Pregnant Workers Fairness Act important?

Half of the workforce is comprised of women, and approximately 85 percent of them will have children. Pregnant women in all professions are at risk of workplace prejudice. Over 20 percent of pregnant workers perform low-wage occupations, which are often physically demanding but offer little control over workplace conditions. 

The Equal Employment Opportunity Commission receives pregnancy discrimination complaints from low-wage sectors like retail, food services, and administrative services. These three industries consistently make up a third of complaints. “The passage of the Pregnant Workers Fairness Act is an incredible victory for the millions of pregnant workers and working moms who are the backbone of our economy yet treated like second-class citizens under the law,” said Dina Bakst, co-president of legal and advocacy organization A Better Balance. “We’re proud to have been fighting alongside these workers for the past decade and working with them to secure this major milestone for gender, racial and economic justice across the country.”

The PWFA requires employers to provide pregnant workers with light duty, the opportunity to have a water bottle on the job, and unpaid leave for doctor’s appointments, (unless they pose an undue hardship). Since 2012, advocates have introduced it in Congress. 

“Pregnancy should never be a barrier for women who want to stay in the workplace,” said Senator Bob Casey, one of the sponsors. “This legislation would provide commonsense protections for pregnant workers, like extra bathroom breaks or a stool for workers who stand, so they can continue working while not putting extra strain on their pregnancies.” Thirty states and five localities have adopted the PWFA, which is the most in the decade since its introduction.

The pitfalls of the Pregnancy Discrimination Act

The Pregnancy Discrimination Act, which is now in effect, is intended to allow pregnant workers to continue working. However, it allows a pregnant worker workplace accommodations if “similar” individuals are given the same permission, and courts have long held that those who are injured on the job, who frequently receive accommodations, are not sufficiently similar to pregnant workers. However, the Americans with Disabilities Act only covers pregnant workers with certain health conditions, leaving healthy pregnancies unprotected. “Neither of them provide an explicit right to accommodation,” Sarah Brafman, national policy director at A Better Balance, stated in 2020.

Further protection for pregnant workers

Peggy Young, a UPS employee who was denied a light-duty assignment while pregnant, won a 2015 Supreme Court finding that pregnant workers are akin to wounded workers. But it was a narrow decision, and courts have set such a high standard to prove that a pregnant person’s employer has made equal accommodations to other employees that businesses won almost two-thirds of the claims pregnant workers brought.

The PWFA will clarify employers’ obligations and benefit women like Kimberlie Michelle Durham from Alabama, one of the states without a PWFA. In 2020, Durham was an emergency medical technician who was “really passionate about” her job when she got pregnant in 2015. Early in her pregnancy, her doctor advised her not to move anything above 50 pounds. She requested a lighter job like dispatch because a stretcher with a body weighs over 100 pounds. She was told such labor was only for injured workers, and she was forced to take unpaid leave. She eventually lost her position.

She now works in factories and retail instead of as an EMT. She stated she never anticipated losing her job over pregnancy.

After the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade, Democrats struggled to come up with a policy response. Federal legislation to safeguard Roe failed. They have also failed to meet the needs of women and families in other ways. The Build Back Better plan contained paid family leave and substantial child care and elder care funding, but the Inflation Reduction Act removed those features. Last year’s enlarged Child Tax Credit, which raised payments, reached more low-income families, and was paid monthly, expired at the end of the year and hasn’t been reinstated.

There is clearly much more to be done, but this one step could potentially assure that pregnant women don’t have to choose between their health and their finances.