With Kentucky Governor Matt Bevin’s signature on Tuesday, half of U.S. states now have a simple rule on the books: Employers have to make small changes so that pregnant employees can remain in their jobs while also staying healthy.
In late March, Kentucky’s legislature overwhelmingly passed the Pregnant Workers Act, making it the 25th state in the country to pass this kind of legislation. Now that Bevin has added his signature, the state’s law will require employers to engage in conversations with pregnant employees about potential accommodations they may need to stay healthy and at work during their pregnancies, and to offer changes to them unless doing so would present an undue hardship. Some of those changes can be small, such as a stool to sit on, the ability to carry a water bottle, or more frequent breaks. Others who work in physically demanding jobs may need to be placed in light duty positions to protect their health.
That’s what happened to Kentucky residents Lyndi Trischler and Sam Riley. Both needed relief from their duties as patrol officers to protect their pregnancies at work: Trischler’s heavy gun belt and tight bullet-proof vest were causing her pain and health issues. But at the time, their city’s policy only allowed those with on-the-job injuries to participate in the light duty program, so they were pushed off the job and onto leave. The Department of Justice eventually got involved and issued a consent decree, and the city of Florence changed its policy.
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However, the state’s new law “provides that clarity so that sort of situation doesn’t happen again,” said Elizabeth Gedmark, a senior staff attorney with A Better Balance, which represented Trischler and Riley and advocated for the bill. “If the Kentucky Pregnant Workers Act had been on the books, I don’t think there would have been the confusion where the city of Florence clearly was not understanding its legal options.”
The state’s law also creates protections for employees once they come back to work and are breastfeeding, requiring companies to offer private places other than bathrooms where they can express breast milk at work and offer reasonable accommodations so someone can keep working and breastfeeding without suffering health consequences.
“This law is not a token measure or just a symbolic victory,” Gedmark said. It’s a “robust law that provides critical protections for pregnant women” and “ensures that no woman will have to choose between a healthy pregnancy and her job.”
It’s nearly identical to the 24 other state laws that have already been passed requiring accommodations so that pregnant employees can stay at work and remain healthy. While the federal Pregnancy Discrimination Act and Americans with Disabilities Act both require pregnant workers to be treated the same as their peers, even legal experts can struggle to determine what that means in every case. A law like Kentucky’s makes it crystal clear what responsibilities an employer has to its pregnant employees. It should also give pregnant workers the confidence that they can hand in a doctor’s note requiring job changes for their health without the fear of being penalized or even losing their jobs. And it will make an employee’s rights apparent up front, not after lengthy litigation and legal costs.
It’s not just helpful to the state’s employees, however. It’s also useful for businesses that otherwise face a “very complex and confusing legal landscape,” Gedmark said. Many small businesses don’t have in-house legal counsel and can’t afford to hire attorneys to help them navigate each relationship with a pregnant employee. The law provides “critical clarity to them,” she said. “Employers [will] understand what their legal obligations are up front. That really does save everybody time and money, as well as potential heartache.”
But it took hard work to make the new law reality. A Better Balance has been working with a coalition of advocates, including the local ACLU and United Food and Commercial Workers union, since 2014 to push for a statewide law. That effort got a significant boost when Greater Louisville Inc., the city’s chamber of commerce, not only signaled support, but got actively involved in advocating for the law, making it a priority. “They talked about this as pro-business, pro-workforce legislation,” Gedmark said. That was significant. “Even in a very conservative state you can have businesses that are champions of this issue,” she noted.
In the end, the bill got “robust and overwhelming bipartisan support in both chambers,” Gedmark said.
That overwhelming support could have ripple effects throughout the country. There are still 25 states that don’t have their own versions of this law, where employees and employers alike face a murky legal landscape around pregnancy accommodation at work. A Better Balance has been actively involved in advocating for a bill in Tennessee, and there are other, earlier stage campaigns in other places. Many legislative sessions have already ended for this year, but advocates are gearing up for a strong offense in 2020.
“Kentucky’s passage demonstrates once again the groundswell of momentum around this issue,” Gedmark said. It comes on the heels of South Carolina passing similar legislation in early 2018, following other red states like Alaska, Nebraska, Texas, Utah and West Virginia. Having conservative, Southern states act on the issue injects energy into efforts in other places. “Working in the South, you can’t really point to an extremely liberal state and say, ‘Here’s a model,’” she noted. It’s therefore helpful for advocates to be able to highlight South Carolina and Kentucky as examples of fellow states taking action.
It also helps in purple and even deep blue states. “You can say, ‘Look, if you can get this done in a really conservative environment, why can’t we do it here?’” she said. “It’s a call on lawmakers who would consider themselves more liberal.”
The pressure could even reach Congress, where Democrats have repeatedly introduced a federal version of this legislation called the Pregnant Workers Fairness Act (PWFA). Two Republicans signed on to the PWFA as sponsors in 2015, and it has enjoyed bipartisan support since then, but it still hasn’t moved forward. With half the states enacting their own laws, it proves there’s an appetite for change, as well as demonstrating the effectiveness of such policies.
“This is not a partisan issue or something only happening in blue states,” Gedmark noted. “It’s happening across the country and even in the most conservative areas.”