EEOC’s final rule and interpretive guidance for implementation of the Pregnant Workers Fairness Act was published in the April 19, 2024 Federal Register. The final rules are effective June 18, 2024. The time for speculation is over and the time for implementation has begun.

How to understand the final rules

If you have not already done so, go to federalregister.gov and search for the final rule. At the final rule page download the PDF version of the law. The PDF will look identical to the version published in the FR. Rather than reading the 125 pages of the guidance and rules from start to finish, I suggest you first look for familiar words and phrases and see how they interact with the law. This is accomplished by using the ctrl and F keys simultaneously on your computer keyboard.

For example, depress ctrl and F keys simultaneously and type in “industrial hygienist” (without quotes). The IH title will appear three times within the rules. The IH title is included among the health care providers recognized within the rules. Next, find how “health care providers” (appears 67 times) are used within the rules. Finally, consider the threats or opportunities that are associated with health care providers. If you are brainstorming correctly, at a minimum the following two threats or opportunities should be found:

1. “Any health care provider familiar enough with the individual’s circumstances to provide the described information may do so under the final rule, whether or not they are treating the individual for the condition at issue.” See FR page 29137, third column.
2. A health care provider aka Industrial Hygienist is included among the individuals who may be an “employee’s representative.” See FR page 29183, rule 1636.3(c).

Threats and opportunities are based upon individual or workplace circumstances. It is not unusual if you identified more than the two conditions above.

Additional words or phrases that you should investigate and brainstorm within the final rules include Lifting (63x), Chemical (47x), Heat (11x), Ergonomic (6x), Pain or risk to health (19x), Occupational (20x), OSHA (6x), NIOSH (6x), and Mitigating measures (13x) to name a few. The intent of this exercise is to help illuminate what this new law is or is not about.

OSHAfied

The above exercise may be difficult for the OHS pros that are or are becoming OSHAfied. OSHAfied has a similar definition to ossified meaning becoming rigid or fixed in attitude or position.  Many of our OHS pro counterparts believe that occupational health issues can only exist under an OSHA umbrella. The final rules have taken steps to counter OSHAfied thinking. For example, if you completed the above exercise, you would find footnote 112 that reads:

• The Commission notes that ‘‘mitigating measures’’ for the purposes of the PWFA are not the same as ‘‘mitigation measures’’ taken as part of occupational safety and health which refer to actions taken by employers. See, e.g., U.S. Dep’t of Health & Hum. Servs., Ctrs. for Disease Control & Prevention, Nat’l Inst. for Occupational Safety & Health, Hierarchy of Controls (Jan. 17, 2023), https://www.cdc.gov/niosh/topics/hierarchy/ default.html.

Brainstorming each of the 13 times mitigating measures are mentioned in the final rules will help draw clarity of what footnote 112 means.

There are times when OSHA regulations and the practice of Hierarchy of Controls may be the best reasonable accommodation for pregnancy related concerns. For example, brainstorming about the 47 times the word “chemical” is mentioned in the final rules should reveal significant threats and opportunities. For example, since publication of PWFA final rules, I will sternly recommend to all my clients that any chemical with the OSHA GHS Hazard Statement “May damage an unborn child” or “May harm breastfed children” be replaced or maintained at safe limits, that may include the DNEL.

Serving the underserved

Lydia is a delivery driver. Nour drives a delivery van. Olga does carpenter work. Elena is a park ranger. Ava is a police officer. Tamara, Margret, Jayde, Margot, and Patricia work in retail positions. Lourdes and Fatima work outdoors as farmworkers. Arya and Mei work in a warehouse. Hanh works in a call center. Arisa and Rory work in a fulfillment center. Tallah is a cashier at a small bookstore. Taylor works as a waitstaff. Kia is a restaurant server. Ralm is a social worker. Katherine is a budget analyst. Salma works for an employment agency. Riya is a data analyst. Cynthia is an office manager. Jazmin is a teacher. Addison is an office clerk. Launa is a customer service representative.

The above are among the final rule examples of employees that may have a need or limitation related to pregnancy. This group of employees, however, rarely have an interface with an OHS pro. These employees may or may not have the support of a health care provider. Clearly, however, if the final rules are understood, these employees deserve to be provided with reasonable accommodation to enable work to continue without jeopardizing their health or the health of their pregnancy. By this measure, the PWFA is a game-changer on how occupational health is managed in the United States.

Once you understand the intricacies of what the PWFA is, it becomes easy to rationalize that the PWFA will eventually become the most consequential workplace health law since the enactment of OSHA in 1970. The PWFA has the capacity to improve children’s health and help protect the health and comfort, e.g. reduced pain for the fast-growing older worker demographic. Businesses that embrace the PWFA have a lure to secure loyal workers.

Epilog 

I have closely followed the PWFA from its conception, growth through state laws, and now its birth with final federal rules. It certainly was an interesting journey. I am pleased to have been an advocate that helped arrive at the final rules. I do believe that I don’t need to write anymore about this topic to OHS pros. I do want to step aside on this topic, however, with an important understanding.

Global “fairness” for pregnant workers appears as an empathy for “motherhood and apple pie.” The cold reality, however, is that every rich nation favors every able-bodied person to work and pay taxes while simultaneously creating the next population of taxpayers. This reality bolsters bipartisan political support for the law and support among leading employer organizations. The rationale for the US’s PWFA is not unique. Countries in Europe began this legislative journey back in 1992 with the EC publication of the Pregnant Workers Directive.