Here & Now

Sharyn Tejani on Pregnant Workers Fairness Act Protections

Frederica Freyberg:

Last August, Walmart employees in Wisconsin represented by the U.S. Equal Employment Opportunity Commission lost a federal court case that tried to argue pregnant workers, like workers injured on the job, should receive temporary, light-duty work. Now a new federal law requiring reasonable accommodations for pregnant workers takes effect next month. The Pregnant Workers Fairness Act passed in December as part of the trillion-dollar Inflation Reduction Act. For more on what’s being called a landmark new law taking effect June 27th, we turn to Sharyn Tejani, associate legal counsel at the EEOC. Thanks very much for joining us.

Sharyn Tejani:

Thank you for having me.

Frederica Freyberg:

So in your mind, how big of a game-changer is this for pregnant workers?

Sharyn Tejani:

It’s going to be an important change for pregnant workers. Right now, under certain laws, pregnant workers can get accommodations, but it can be difficult. This gives pregnant workers a direct way to get an accommodation. Of course what this provides for is accommodations as long as they don’t cause an undue hardship. It’s not an automatic thing that a pregnant worker will get an accommodation but rather something they can get, discuss with their employer and see what it works.

Frederica Freyberg:

What will the Pregnant Workers Fairness Act require specifically in terms of those accommodations? What are some examples that a pregnant woman could seek?

Sharyn Tejani:

So when you look at what Congress was talking about when it was passing this law, some of the accommodations they were talking about were incredibly simple things. Things like carrying around a bottle of water, additional breaks to go to the bathroom, a stool if you normally have to stand during — when you’re doing your job and leave to recover from childbirth and occasionally having parts of your job excused because of your pregnancy, you’re unable to do them, something like heavy lifting.

Frederica Freyberg:

It seems kind of incredible that there would need to be a federal law to have these accommodations in the workplace.

Sharyn Tejani:

Well, yes, but there did need to be one. Some employers obviously provide these kinds of things to their employees as a matter of course, and in certain types of jobs, you know, if you’re working in an office, for example, lawyers, for example, who work in a law firm, the idea that they would need a federal law in order to be able to carry water around with them, of course not. Most people who work in offices are able to do that. But different kinds of jobs have certain rules and for those kinds of jobs, this is going to be a very important thing for pregnant workers up until now didn’t have a direct path in order to get these kinds of accommodations.

Frederica Freyberg:

How does a pregnant worker prove limitations requiring accommodation? Is pregnancy itself a known limitation?

Sharyn Tejani:

Well, the statute says that a known limitation is a physical or mental condition related to, arising out of or affected by pregnancy, childbirth or related medical conditions. So there aren’t specific examples within the statute, but when you look at what Congress was talking about, they were talking about things like carrying around a bottle of water, something that you might need in order to keep healthy while you’re pregnant and also something that you might need, for example, if your ankles are swelling and you need to sit down, so it could be any of those things, but what’s important to understand is that it seems that they were aiming at kind of simple things that shouldn’t be a big change in how the workplace is functioning but, rather, what will make it easier for a pregnant worker to do their job.

Frederica Freyberg:

Are all pregnant workers covered under this law?

Sharyn Tejani:

They are covered if they work for a covered employer, and those are employers that have at least 15 employees and the federal government.

Frederica Freyberg:

What if the employer and you spoke to this earlier says the accommodation causes them undue hardship? What constitutes undue hardship and does that represent some kind of a loophole whereby pregnant workers would not be able to get these accommodations?

Sharyn Tejani:

I don’t think it’s a loophole. It’s a defense. If the employer can show that it would cause significant difficulty or expense, then the employer does not have to provide the accommodation, and so it balances the needs of the pregnant workers and the needs of the employers. Although what the employer has to show is a significant difficulty or expense and given the simple accommodations that might be necessary, hopefully that won’t be what the employers are saying.

Frederica Freyberg:

How does an employee assert their right to these accommodations under this law?

Sharyn Tejani:

Well, the employer only has to accommodate things that it knows about. So in the first step, it’s the employee saying, “I need an accommodation and this is why.” Then the law talks about using something called the interactive process, which is something that’s from the Americans with Disabilities Act, where the employer and the employee just can talk or email or somehow communicate about what the employee needs and what the employer can give.

Frederica Freyberg:

What has happened to pregnant workers before this law that really required it to be put in place?

Sharyn Tejani:

So pregnant workers were often faced with a very difficult choice. They could either keep their paycheck or do something that either caused them pain, that they couldn’t do because of their pregnancy or that they thought put their pregnancy or their own health at risk, and with this law, absent undue hardship, hopefully that won’t be happening.

Frederica Freyberg:

All right. We appreciate your expertise on this, Sharyn Tejani, thanks very much.

Sharyn Tejani:

Thank you very much.