What is the pregnant workers fairness act? : The Indicator from Planet Money What happens if someone can't perform their job in the same way because of pregnancy? Until now, they could be sent home without pay – essentially lose their job. But a new law aims to change that, by requiring employers to provide reasonable accommodations for pregnant people. For sponsor-free episodes of The Indicator from Planet Money, subscribe to Planet Money+ via Apple Podcasts or at plus.npr.org.

The pregnant workers fairness act, explained

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SYLVIE DOUGLIS, BYLINE: NPR.

(SOUNDBITE OF DROP ELECTRIC SONG "WAKING UP TO THE FIRE")

ADRIAN MA, HOST:

This is THE INDICATOR FROM PLANET MONEY. I'm Adrian Ma.

WAILIN WONG, HOST:

And I'm Wailin Wong. Last week, the U.S. Capitol building briefly resembled a day care. We are talking about literal children. All these congressional representatives brought their families to Washington, D.C., for their swearing-in ceremony. But then, with all the chaos around the speaker vote, there were kids just, like, hanging out in the House chamber with their parents - reps bouncing babies and tweeting about diaper changes.

MA: And seeing all these little kids in a room where legislators vote made us think about a new law that is supposed to support families that has taken a long time to get passed. We're talking 10 years.

WONG: Yeah. Think of all the milestones you as a parent would have experienced in the last decade while this bill was trying to get done.

(SOUNDBITE OF SONG, "YOUR PRETTY EYES")

KANIA ALLARD AND PIERRE TERRASSE: (Singing) Baby, baby, baby, baby.

WONG: Your kid would have said their first word and taken their first steps.

MA: They would have gotten potty trained, start at school, maybe gained a new sibling or two. And that is how long it took for the Pregnant Workers Fairness Act to become a reality. It has been a very long road for this piece of legislation. This law, by the way, it was part of the big $1.7 trillion spending bill which passed Congress last month.

WONG: Today on the show, we look at the Pregnant Workers Fairness Act to see what kinds of protections this new law provides to pregnant workers and what that could mean for their prospects in the labor market.

(SOUNDBITE OF SONG, "YOUR PRETTY EYES")

ALLARD AND TERRASSE: (Singing) Baby, baby, baby, baby.

WONG: Economists have long documented what's known as the motherhood penalty. These are the gaps in pay and in career opportunities that exist between working mothers and their male peers.

MA: And one person who's looked closely at this issue is Jennifer Shinall. She's a law professor at Vanderbilt University. She's got a law degree and an economics Ph.D. And she's using both to study the labor market.

JENNIFER SHINALL: Why I became really interested in pregnancy is this question of, when does the motherhood penalty start? Does it start when you actually give birth to a child, or does it start in the nine months prior? And my research suggests that it very much starts the nine months prior.

MA: And so the Pregnant Workers Fairness Act is designed to chip away at this motherhood penalty at an early stage. And it's trying to do that by making it possible for pregnant employees to keep working in a safe way. So in a nutshell, the new law requires employers with at least 15 employees to make reasonable accommodations for pregnant workers.

WONG: So what is a reasonable accommodation? Common examples would be restrictions on lifting objects and people or providing pregnant workers with stools if they have a job that typically requires them to be on their feet. Another example is allowing water breaks or letting a pregnant employee keep a water bottle with them on the job.

SHINALL: It sounds crazy, but I will tell you that that issue has been really hotly litigated in the retail space because there's no place for an employee to put their water bottle down - right? - if you're on a floor. I mean, you can also imagine a situation where an employee works in a factory - the same thing. The employee either has to physically carry the water bottle or find someplace safe to put it down.

MA: And Jennifer says when employers do not provide these accommodations, pregnant workers can get pushed out of the labor force. So they lose income right when they really need it. This is a particular problem for women who are already in low-wage jobs. And according to the National Women's Law Center, that describes more than 20% of pregnant workers.

SHINALL: One big concern, especially at this point of becoming a mother, is that if a woman has a bad experience when she's pregnant, then, you know, she can't find another job. Eventually, she becomes what's called a discouraged worker, and she stops even trying.

WONG: This new law isn't the first attempt on the federal level to protect pregnant workers. Almost 50 years ago, Congress passed the Pregnancy Discrimination Act. This older law says pregnant workers should be treated the same as people who are similar in their ability or inability to work.

MA: But Jennifer says this earlier law fell short when it came to protecting pregnant workers because it doesn't explicitly say they have rights to accommodations. Instead, it kind of put this burden on the workers to prove that there was some sort of workplace precedent for accommodations, right? Maybe a colleague who had a injured knee said they needed a physical accommodation, and their employer said, OK. But in practice, proving this to employers and courts has been very challenging.

WONG: Take Michelle Durham, a mom from Alabama who shared her story with a House subcommittee in 2019.

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MICHELLE DURHAM: I want you to know what happened when I became pregnant four years ago. They say that pregnancy is supposed to be a time of happiness, but my pregnancy was filled with anxiety and fear because my employer...

WONG: In 2015, Michelle got a job as an emergency medical technician. When she became pregnant with her first child, her medical provider said she shouldn't lift anything over 50 pounds. As an EMT, she routinely had to lift structures that weighed a hundred pounds even without a patient on them. So she asked her employer, a company called Rural/Metro, for a temporary reassignment to a role like dispatch.

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DURHAM: I didn't think it was a problem because I knew that Rural/Metro had a policy of giving light-duty jobs to EMTs when they had problems like a back injury.

WONG: But according to Michelle, her manager said light-duty jobs were only for EMTs who had been injured while working. She was told her sole option was taking unpaid leave. Michelle ended up unemployed for most of her pregnancy, and the jobs she later landed didn't come with health insurance like her old EMT job.

MA: Michelle fought back. She sued her employer under that earlier law and eventually won on appeal. But Jennifer and advocates for pregnant workers say most people like Michelle, who sue their employers to get accommodations, are actually not successful.

SHINALL: Judge Posner on the 7th Circuit famously said that all that the Pregnancy Discrimination Act guaranteed for pregnant workers is that the employer treat them no less badly than they treat all their other workers.

WONG: Great. What a victory.

(LAUGHTER)

MA: Setting the bar high. See, the problem with this earlier law is that it lacked clear language about accommodations. The new Pregnant Workers Fairness Act fixes this by stating employers have to reasonably accommodate their pregnant employees.

WONG: Jennifer says guaranteeing the right to accommodations on a federal level could measurably improve economic outcomes for pregnant workers. And this is because she's seen what's happened at the state level. There are 30 states - like New Jersey, Nebraska and West Virginia - with laws or executive orders requiring reasonable accommodations for at least some pregnant employees. Jennifer studied the effects of these laws and published her findings in a 2020 paper. She found that accommodation laws increased employment rates of pregnant women by 1 to 2 percentage points. Labor market participation rates also went up. In other words, these accommodation laws helped pregnant employees stay in the workplace.

MA: And also, in that same paper, Jennifer studied the impact of a different kind of law called a pregnancy transfer law. So this requires employers to move a pregnant worker into an open job that is less strenuous. And Jennifer found that these laws actually seemed to reduce employment rates, possibly because pregnant workers weren't given an option. Like, they were forced into jobs that didn't suit them. Jennifer says this difference in outcomes shows that the type of pregnant worker protection matters.

WONG: Of course, whether employers will be responsive under the new Pregnant Workers Fairness Act remains to be seen. It's now up to the Equal Employment Opportunity Commission and the U.S. attorney general's office to enforce the new law. And the commission will develop guidance on reasonable accommodations.

MA: And Jennifer, for her part, feels hopeful. She says she thinks the pandemic has raised awareness of issues that working parents face.

SHINALL: We were on Zoom, seeing children running across the background while parents were trying to do work. I am hopeful that that lived experience of everyone - parents and nonparents - during the pandemic led to more understanding. And I have to say, the passage of the Pregnant Workers Fairness Act at this moment makes me more optimistic. This is a bill that's been around for a long time. And I don't think it's a coincidence that it finally, just at this moment, got enough support to pass Congress.

(SOUNDBITE OF KANIA ALLARD AND PIERRE TERRASSE SONG, "YOUR PRETTY EYES")

MA: Hey, maybe if congresspeople bring their kids more often, more will get done.

WONG: (Laughter) Adrian, can I drop my child off at your place so that I can get more work done?

MA: Uh...

WONG: (Laughter).

This episode was produced by Brittany Cronin and engineered by Robert Rodriguez and Josh Newell. Sierra Juarez checked the facts. Viet Le is our senior producer. Kate Concannon edits the show. And THE INDICATOR's a production of NPR.

(SOUNDBITE OF SONG, "YOUR PRETTY EYES")

ALLARD AND TERRASSE: (Singing) Baby, baby, baby, baby.

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