New Rules: Pregnant Workers Must Get Time Off for Birth, Abortion
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Pregnant workers are about to get time off and key workplace accommodations as part of new rules, according to an announcement by the Equal Employment Opportunity Commission (EEOC) on Monday.
The new law, finalized under the Pregnant Workers Fairness Act (PWFA), includes time off for childbirth, abortion, miscarriages and more. It also includes accommodations like breaks for hydrating, eating, resting or using the restroom; telework; leave for medical appointments; or altering a work schedule.
EEOC Chair Charlotte A. Burrows said in a press release on Monday, “This final rule provides important information and guidance to help employers meet their responsibilities, and to job seekers and employees about their rights. It encourages employers and employees to communicate early and often, allowing them to identify and resolve issues in a timely manner.”
Key context
The PWFA passed in December 2022 and went into effect last summer. The final rules are expected to go into effect as of June 18. The rules were expected to go into effect sooner than June, but the EEOC received roughly 100,000 comments as part of the rulemaking process.
The law expands eligibility to time off for workers who otherwise don’t qualify for leave under other laws. For example, the Family and Medical Leave Act (FMLA) provides qualified workers with 12 weeks of unpaid time off. But it applies only to employees who have worked for at least 12 months for employers that have 50 or more workers.
About 44% of U.S. employees are not eligible for the FMLA, according to a 2020 brief by the Department of Labor. Among those ineligible employees, 15% are ineligible because their workplace is too small. And 1 in 5 ineligible employees are so because they haven’t worked for an employer long enough to qualify.
The new law plugs other holes left by existing legislation. For example, over two-thirds of pregnant workers lose pregnancy accommodation cases under the Pregnancy Discrimination Act due to onerous red tape, according to a 2021 report by A Better Balance, a national nonprofit advocacy organization.
The new rules are expected to augment other laws that protect workers who are pregnant or have related conditions, including the Americans with Disabilities Act. The EEOC notes more than 30 states and cities have their own laws related to accommodations for pregnant workers.
What you need to know
Employers aren't forced to pay. The leave doesn’t have to be paid, but an employer obviously can provide paid leave as part of its own policies. Employers also do not need to directly pay for care, abortions, travel, etc. The accommodations must be made unless it causes “undue hardship” to the employer.
The timeline for time off must align with medical needs. The rules don’t specify how long the leave must be. But the accommodations must be reasonable and in line with medical care.
Even smaller businesses must comply. The law applies to all public employers — including Congress and the federal government — and private employers that staff 15 or more workers. It also applies to unions and employment agencies.
Exemptions are possible. The law allows for an exemption for religious employers like churches.
The rules apply to states with strict abortion laws. Even in states with widely prohibitive abortion laws, the rules mean employers must provide time off for a worker to travel out of state to get an abortion.
Why this matters
This is a significant change for pregnant employees who otherwise aren’t offered accommodations or leave for pregnancy or related conditions. Covered conditions include giving birth, having an abortion, Caesarean sections, edema, lactation, gestational diabetes, mastitis, miscarriage, morning sickness, stillbirth, postpartum depression and preeclampsia.
In addition to unpaid leave, reasonable accommodations include things like breaks, scheduling changes, private areas at a work site for lactation needs, remote work, temporary transfers to less physically demanding work and more. The law also protects workers from retaliation.
What’s next
The rules are slated to go into effect June 18, which is 60 days after April 19, when the rules are expected to be officially posted in the Federal Register.
The EEOC is in charge of enforcing the law. Once the PWFA goes into effect, employees can file charges with the EEOC if they believe their employer violated the rules. The EEOC has already been accepting charges that allege violations of the PWFA.
(Photo by Paul Morigi/Getty Images for A Better Balance via Getty Images)
