Pregnant Workers Fairness Act Includes Heat Safety Protections at Work

Earlier this month, the Biden administration announced a new rule that, if finalized, would become the first federal regulation specifically designed to protect workers from extreme heat both indoors and outdoors. It would trigger requirements for access to drinking water and rest breaks when the heat index reaches 80 degrees Fahrenheit. At 90 degrees, it would mandate 15-minute breaks every two hours and require employers to monitor for signs of heat illness.

The rule has taken years to draft and likely wouldn’t be implemented until 2026 — though it could be stymied if President Joe Biden fails to win re-election. But pregnant workers don’t have to wait for some of these protections, thanks to last year’s passage of the Pregnant Workers Fairness Act (PWFA).

While the law has been enforceable since 2023, it wasn’t until June that its final regulations went into effect. The act requires employers to provide “reasonable accommodations” to pregnant workers who need to modify some aspects of their duties or workspace to protect their health and pregnancy — as long as it doesn’t cause “undue hardship” for the employer. These include having a water bottle at their workstations, being able to sit instead of stand and taking more frequent breaks to eat, drink or use the restroom.

“We think that these accommodations will almost always never cause an undue hardship” to an employer, said Sharyn Tejani, associate legal counsel for the U.S. Equal Employment Opportunity Commission, the agency responsible for enforcement. The Pregnant Workers Fairness Act also makes it clear that these types of basic accommodations don’t require a doctor’s note, something advocates say used to cause unnecessary delays.

Other options available to pregnant workers include access to a personal cooling device, a change in work hours to avoid the hottest parts of the day, a temporary reassignment to a job with less heat exposure or the ability to work remotely.

“The last possible option an employer can provide is [unpaid] leave, but that should really be a last resort,” said Kameron Dawson, senior staff attorney with A Better Balance, a nonprofit that advocates for improving workplace conditions for caregivers. This would only be an option if the accommodation presented an undue hardship on the employer, which Dawson says is a high bar to clear. First, the employee and employer are supposed to discuss all possible options and show they made a genuine effort to find a solution. “We want to make sure workers have job protection,” she said.

Before the act passed, Dawson said, providing unpaid leave would have been a quick out for employers, but a huge financial burden for a worker who couldn’t afford to lose any paychecks. The effects were disproportionately felt by women of color, who are significantly more likely to be the main breadwinners for their families.

Pregnant people need accommodations at work because they are more vulnerable to illnesses like heat stroke or heat exhaustion, said Dr. Marya Zlatnik, an OB-GYN at the University of California, San Francisco. That’s because a pregnant person’s heart is working overtime to supply blood to the placenta, which carries nutrients and oxygen to the growing fetus. This makes it harder for their body to cool down.

“So a pregnant woman in the third trimester who’s just sitting there, it is almost like she’s working out,” Zlatnik said. “Maybe her pulse is at 90 when she’s perfectly at rest. On a not particularly hot day, if she walks a block, her pulse may be 120. And if it’s a really hot day, her pulse could jump up to a dangerously high level.”

A pregnant person is also more susceptible to becoming dehydrated, which increases their risk of going into preterm labor, she said. Studies have also found a link between extreme heat and an elevated risk of developing preeclampsia, a serious pregnancy complication which causes persistently high blood pressure, as well as risk of delivering low birth weight babies.

Heat exposure is a concern for pregnant women who work in industries like manufacturing, construction and agriculture, said Dawson. And this summer, as heat has enveloped large swaths of the country, A Better Balance has also received calls on its hotline from employees at big retailers and bakeries, where heat also has the potential to affect their pregnancy, she said. But, she added, the Pregnant Workers Fairness Act “does offer that safeguard now, while OSHA and other agencies are working on the final rule for the heat standard.”

The Occupation and Safety Health Administration, or OSHA, a federal agency whose mission is to protect workers, first announced it was working on the new rule in 2021. It was one of several initiatives the Biden administration spearheaded to combat the dangers of extreme heat. Others include the formation of a heat working group and a plan to increase workplace inspections for heat-related hazards. An OSHA spokesperson said the agency “is working swiftly and responsibly to ensure that the rulemaking process continues effectively,” though would not speculate on when the final rule will be published. The rule can only be finalized after a public comment period and hearings.

In the meantime, the act offers a good buffer, but there are still limitations to its effectiveness for those most vulnerable to the heat, Zlatnik said. One is that it only covers pregnant workers, who are a small share of the total workforce. Also, some pregnant workers may be afraid to request accommodations under the law. “Most people who are maybe undocumented — or maybe they’re citizens, but they are still sort of on the margins — are not excited about entering into some kind of legal battle, right?” she said. “Even if now legally, they have more rights, they don’t really have a way to satisfy them.”

Because the act is still fairly new, one of the main barriers to its use is that employers, employees and even healthcare providers don’t know much about what it means, though that’s beginning to change. “A lot of it is about education,” Tejani said. “When you talk to people about this law, it is a pretty common sense situation.”

To fill that knowledge gap, a Better Balance has been reaching out to doulas, midwives and doctors to help them advocate for their patients. OSHA has also released its own guidance on preventing heat illness for pregnant workers. The Equal Employment Opportunity Commission also has been hosting webinars about the new regulations and disseminating its own materials to employers and advocacy groups.

Ultimately, Tejani hopes the Pregnant Workers Fairness Act will level the playing field. “People like me who work in an office, I can go to the bathroom when I want, and I work in air conditioning,” she said. “It’s just such a great thing that there’s now a law for the entire country that applies to all types of workers, including those who work in situations where those things that office workers totally take for granted are not the common thing.”