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News / Health / Health Wire

This law is a lifeline for pregnant workers even as an abortion dispute complicates its enforcement

Published: June 18, 2024, 9:41am

NEW YORK — Victoria Cornejo Barrera thought the legal helpline for workers sounded too good to be true and wondered if it was a scam.

A month earlier, Cornejo Barrera had been forced to take leave from her job as head custodian at a South Carolina high school after she turned in a doctor’s note asking to be exempt from tasks like climbing ladders and lifting more than 20 pounds because she was pregnant.

She spent a month crying and blaming herself for thinking she could keep her job while pregnant. She used up all her accumulated paid time off because she couldn’t afford to go without a paycheck. Then she got a notice from human resources saying she would have to start paying $600 a month to stay on health insurance while on unpaid leave.

“I was feeling so guilty. I was feeling like my pregnancy was the problem,” Cornejo Barrera said.

Searching for help online, she came across the website run by the legal advocacy organization A Better Balance, explaining about a federal law called the Pregnant Workers Fairness Act that entitled her to the types of accommodations she had been seeking. It had gone into effect in June 2023, a month before she was pushed out of her job.

Was the law really on her side? Cornejo Barrera called the helpline.

A new law’s complicated first year

Nearly 500 workers in similar circumstances have contacted A Better Balance’s legal helpline in the year since the implementation of the Pregnant Workers Fairness Act, which strengthens the rights of workers to seek accommodations for pregnancy-related needs. The experiences of those workers tell a complicated story about the impact of a new law that is still unfamiliar to many employers, according to a report released Tuesday by A Better Balance, the organization that spearheaded a decade-long campaign for the law, which Congress finally passed in December 2022.

The majority of those workers, mostly women in low-wage jobs, swiftly obtained accommodation after learning about their rights and invoking them with their employers, said Dina Bakst, co-founder and co-president of A Better Balance. But many women still confronted employers who didn’t know about the law, misunderstood its scope or simply refused to comply, according to the report.

Charlotte Burrows, chair of the Equal Employment Opportunity Commission, which enforces the law and conducts outreach to employers and labor groups, said raising awareness is a major challenge.

“I don’t think we’re where we need to be yet,” Burrows said. “We’re going to be trying very hard to make sure that we close that information gap for everybody.”

A bitter legal battle over whether the law covers abortion, however, is complicating its enforcement.

The dispute centers on EEOC regulations that took effect Tuesday detailing how employers should comply with the law, and which included abortion among the pregnancy-related conditions that entitle workers to time off and other accommodations.

On Tuesday, a federal judge in Louisiana temporarily prohibited the EEOC from enforcing the abortion provision of its rules against employers located in Louisiana and Mississippi, or against the U.S. Conference of Catholic Bishops and three other religious groups that filed a consolidated lawsuit against the EEOC, arguing that the abortion provision is an illegal interpretation of the Pregnant Workers Fairness Act.

Another judge in Arkansas last week dismissed a similar lawsuit filed by Republican attorneys general from 17 states, but Arkansas Attorney General Tim Griffin, who is leading the case, said he is considering legal options to continue pursuing the challenge.

That lawsuit had asked the judge to suspend the EEOC rules in their entirety, a prospect that the American Civil Liberties Union and the National Women’s Law Center, along with more than 20 labor and women’s advocacy groups, warned in amicus briefs could thwart the successful implementation of law.

The EEOC’s rules, for example, make clear that employers cannot delay requests by asking pregnant workers for onerous paperwork to back claims of common pregnancy-related limitations such as morning sickness or back pain. They also cannot force pregnant workers to take leave when reasonable accommodations are available.

The rules outline the high bar employers must meet to prove that granting accommodations would impose “undue hardship” for their organization.

Although the pregnant workers law would remain in place even without the EEOC rules, advocates say it’s a badly needed tool for settling disputes and training employers on compliance. According to A Better Balance, one out of seven workers who contacted its helpline since the law took effect said their employers had ordered them to take leave rather than grant them reasonable accommodations.

Cornejo Barrera was among them, but her employer reversed the decision after she sent her human resources department a letter invoking her rights. Within two days, she shared language from the Pregnant Workers Fairness Act with her supervisor, who then told her she could return to work immediately.

When she went back, she saw that posters informing employees about the law had been added at the high school.

“Realizing that I was right, I was not wrong, it was so satisfying,” said Cornejo Barerra, who worked until the day before her daughter was born on Feb. 2.

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Raquel Robinson, a telecommunication specialist in Ohio, also ultimately prevailed in a similar confrontation with her company, where she has worked for 23 years.

After her daughter was born in October 2022, Robinson was diagnosed with postpartum depression. She struggled to shower and leave her home. “Mentally, I just was not in a good place where I felt like I was good enough to be my daughter’s mom,” she said. “I couldn’t get her to stop crying.”

After her disability leave ended in July 2023, her therapist recommended she work from home to ease the transition and told her she was entitled to such an accommodation under the new law. But her company resisted her request for more than a month. During one excruciating meeting, she realized that the company had shared her personal information, including her struggles with hygiene, with her male manager, only to insist that nothing she described impeded her from doing her job at the office.

“I’m literally in tears thinking about it,” she said. “I’m so embarrassed.”

Robinson reached out to A Better Balance for help and the company relented. She is preparing to return to the office this week after several months of working from home.

Other workers are still fighting to be protected under the law.

Earlier this month, A Better Balance filed charges with the EEOC on behalf of two women alleging violations of the Pregnant Workers Fairness Act. One was an employee of a Chick-fil-A franchise in Indiana who said she was docked points under a punitive attendance system after seeking time to recover from a near-miscarriage that sent her to the emergency room. Another involves an Amtrak engineer who said the railway company marked the first few days she took to give birth as unexcused absences, putting her at risk of being fired, then refused to accommodate her need to pump milk after she returned to work.

Amtrak declined to comment on pending litigation. Chick-fil-A referred questions to representatives of the franchise, whose owner, Jeff Hoffman, declined to comment.

The EEOC says it has received 1,869 charges so far citing violations of the Pregnant Workers Fairness Act and has resolved more than 450, though it has not provided details on the cases.

The abortion issue complicates the law

The law’s passage in 2022 came after years of campaigning by advocacy groups and women in low-wage jobs who shared stories of being denied even basic accommodations. Their experiences helped show that the 1978 Pregnancy Discrimination Act, though it prohibited employers from firing women just for getting pregnant, did little to guarantee workplace accommodations.

But Republican lawmakers and conservative religious leaders who had overwhelmingly supported the Pregnant Workers Fairness Act were furious when the EEOC rules explicitly included abortion. Both Republican commissioners on the five-member EEOC voted against the rule.

Citing numerous court rulings, the EEOC in its regulations said it was conforming to decades of legal precedent establishing that pregnancy-related discrimination laws include abortion.

Mylissa Farmer, the woman at the center of a federal investigation of two hospitals who refused to provide her with an emergency abortion, said her ordeal shows why the Pregnant Workers Fairness Act must include abortion.

Farmer sought emergency treatment after her water broke early at 17 weeks of pregnancy in August 2022. Doctors at hospitals in Missouri and Kansas told Farmer her fetus would not survive, that her amniotic fluid had emptied and that she was at risk for serious infection or losing her uterus but they refused to provide an abortion.

She and her husband traveled for hours while she was in labor before a clinic in Illinois provided her with an abortion.

Farmer, who was working a low-wage job as a sales representative, said her supervisor repeatedly contacted her during her ordeal to pressure her to return to work. She said her doctor recommended she take two weeks off to recover but she returned to work after two days because she was afraid of getting fired. But she ended up facing discipline after absences to cope with the physical and mental trauma of losing her pregnancy, including sometimes breaking down on her way to meet customers.

“I was just not able to get the care that I needed at the time and it made it really difficult to even deal with the emotional loss of what we were going through,” said Farmer, who is being represented by the National Women’s Law Center in a complaint to the Centers for Medicare and Medicaid Services.

She and her husband both ended up leaving their jobs and moving to Oregon with her sister to try to start over. But that didn’t work out and they ended up homeless for a time.

The couple has since rebuilt their lives with new jobs but are living in an undisclosed location because of the backlash she has received.

“At these lower paying job levels, I don’t think a lot of people realize you are very easily replaced in these types of situations,” Farmer said.