Tips on supporting pregnant workers, from the vice chair
Jocelyn Samuels, vice chair of the Equal Employment Opportunity Commission (EEOC) spoke recently at the Society for Human Resources Management (SHRM) Employment Law and Compliance Conference and took time after the presentation to answer questions from J. J. Keller & Associates Editor Terri Dougherty.
One topic of discussion was the Pregnant Workers’ Fairness Act, which takes effect June 27. The Act was signed on December 29, 2022, as part of the omnibus spending bill, and will require employers with 15 or more workers to provide reasonable accommodations when a worker has known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer undue hardship.
J. J. Keller: It seems like the Pregnant Workers’ Fairness Act has been discussed for years. All of a sudden, it’s part of the law. Were you surprised?
Jocelyn Samuels: It passed the House as a freestanding bill, and it was pending in the Senate. It has always been a bipartisan initiative. It is quite remarkable the level of support across constituencies. The Chamber of Commerce weighed in in support of the bill, civil rights advocates weighed in in support of the bill. It had both Republican and Democratic cosponsors.
I actually am not surprised that it has become the law. It is unfortunate that there are not more bipartisan legislative vehicles.
As to its inclusion as part of the consolidated appropriations bill, it’s speculation on my part, but I assume the Senate just ran out of time. There were a variety of things incorporated into the appropriations bill, and this was one of them.
J. J. Keller: Why do you think people can come together around this issue?
Samuels: It’s not good for anybody, employers or employees, if employees have to leave the workplace because of pregnancy or childbirth or related medical conditions.
It’s obviously not good for the employee who needs to earn a paycheck, but it’s not good for employers either, who then have to deal with replacing employees and turnover and the costs of training people.
Support for family responsibilities is something that people across the ideological spectrum can come together on.
Given the upsides of enabling people to stay on the job, I think employers recognize that this was in their own interest. Many of these accommodations are so minimal: Carrying a water bottle, being able to take bathroom breaks, being able to sit on a stool if you are a cashier who normally stands, being able to get a uniform that is big enough to accommodate a pregnancy.
These are virtually costless, routine things that should be quite straightforward. I just think this is a win-win across the board.
J. J. Keller: What should employers do prepare?
Samuels: They should look at their existing procedures under the ADA [Americans with Disabilities Act] and make plans to expand those to cover pregnancy.
We will be issuing a new poster. It will be a replacement poster [for the Know Your Rights: Workplace Discrimination is Illegal poster]. We just updated it six months ago to include sexual orientation and gender identity, and we’re going to update it again to make clear that employers are required to give pregnancy-related accommodations up to the level of undue hardship.
I do think it’s important for employers to look at their processes, to train their HR people and anybody else in their workforces who is involved in considering accommodations, their supervisors, to recognize that pregnancy-related accommodations are now going to be required.
They should think about what their responses should be for some of these really straightforward things. They should be in a position to say to their managers, if there is an employee who wants a water bottle, give it to them.
J. J. Keller: Could an employer go too far by asking, do you want a bottle of water? Do you want a chair?
Samuels: As far as what they [employers] can ask, we are going to be doing our best to inform employees so they know they have the right to ask.
Employers should be aware that employees don’t have to use magic words. An employee doesn’t have to walk into HR and say, “I need a reasonable accommodation for my pregnancy.” They can say, “I’m pregnant and I feel sick in the morning,” and that can be the beginning of the conversation.
Employers should be familiar with this from the ADA context where they engage in these dialogues. We’re drafting regulations on this. My guess is there will be more guidance there about these requirements.
In general, it’s my view that if an employee is obviously pregnant and seems to be having difficulties, an employer can say, is there anything I can do to make your job easier?
But also make it known to your employees that they should come to whoever the person is to request modifications. They can just say, if there are changes in your work that you think you need because you are pregnant or you had a miscarriage or you are going out on childbirth leave, please come to us and let us know. Creating that kind of receptivity will go a long way toward making employees feel like they can come forward.
Key to remember: Employers should understand their obligations under the Pregnant Workers’ Fairness Act and prepare to comply.
This interview has been edited for length and clarity.
