Pregnant workers get federal protections after Indiana lawmakers pull up short on similar steps

Pregnant workers employed in Indiana now have access to guaranteed accommodations after the Pregnant Workers Fairness Act, a federal law that Indiana repeatedly failed to enact in previous years, went into effect Tuesday.

More than half of states already had similar protections enshrined into law, specifying that businesses with more than 15 employees must accommodate pregnant workers by assigning light duty, allowing more bathroom and rest breaks, as well as anything else recommended by a medical provider — so long as it doesn’t create an “undue burden.”

Rep. Maureen Bauer, D-South Bend, noted that Indiana has one of the worst maternal mortality rates in a country with the worst maternal mortality rate among wealthy countries. For women of color, particularly Black women, mortality rates are nearly double.

“In Indiana, you can ask but you can be denied. So there’s nothing that ensures a healthy pregnancy or a healthy mom and a healthy baby,” Bauer said. “We couldn’t get this done at the state level. We’re hopefully going to see major changes in including women in the workforce and having healthier outcomes (in) pregnancy and childbirth.”

Why protections are needed

Though the Americans with Disabilities Act and Pregnancy Discrimination Act both offer legal protections to workers, neither guarantees accommodations for a pregnant employee. Rather, hundreds of thousands of women lost their jobs — and often their health insurance — when seeking accommodations to protect themselves or their fetus, as documented by A Better Balance, which pushed for such protections for a decade.

“A pregnant worker, often a low-wage woman of color, would seek a modest job modification — refraining from heavy lifting, carrying a water bottle, using a stool as a cashier or taking extra bathroom breaks, as needed,” an organization report detailing the passage of PWFA said. “The worker’s manager would refuse the worker’s request, forcing them to choose between their health and their livelihood.”

New York City was the first to codify protections in 2014 and A Better Balance reported working to pass similar laws in 26 other states before the 2022 passage of the Congressional bill. According to Bloomberg Law, at least 30 states had stronger protections than the federal standard pre-PWFA.

“The ability to maintain employment during pregnancy is critical for the health and wellbeing of a pregnant worker and her developing child. Income provides for food, housing, and access to healthcare,” the Kentucky Department of Public Health and Wellness said in a 2019 Pregnant Workers Health Impact Assessment.

The Kentucky agency reported that allowing pregnant workers to sit during their shift reduced the risk of a preterm birth. Additionally, limiting the amount of weight lifted regularly reduced the risk of miscarriage but working in loud workplaces could contribute to infant hearing loss.

Kentucky has a maternal mortality rate is higher than Indiana’s, according to numbers from the Centers for Disease Control and Prevention, but passed state-level pregnancy protections in 2019.

Indiana’s 2022 Maternal Mortality Review Committee reported that 92 Hoosier women died during or shortly after childbirth in 2020. Nearly two-thirds, or 62%, were employed. The report didn’t analyze whether work or the lack of workplace accommodations played any role in their deaths and made no workplace-specific recommendations.

Limited state success

Gov. Eric Holcomb included pregnancy accommodations in his legislative agenda in both 2020 and 2021, emphasizing the need to improve Indiana’s infant mortality rate. In 2021, Holcomb signed an executive order acknowledging the shortcomings of federal protections and directed state agencies to provide reasonable accommodations to pregnant workers.

“Whereas, the benefits of providing reasonable pregnancy accommodations to women in the workforce can include, for example, reducing the chance of preterm births, promoting worker retention and productivity, and increasing workforce morale,” Holcomb wrote in the formal language of an executive order. “Whereas, the most commonly requested pregnancy accommodations do not place an undue hardship on employers, are fairly limited in scope and are often at no cost or a one-time low cost…”

But state legislators didn’t agree with Holcomb, declining to create such protections for all pregnant workers. Instead, lawmakers required that businesses respond to a pregnant employee’s request for an accommodation within “a reasonable timeframe,” swayed by the Indiana Chamber’s intense lobbying effort against stronger requirements.

“During my administration we have taken steps to ensure protections for pregnant women in the workforce and help more moms and their babies get off to a healthier start. I’ll always be looking for ways to continue making progress on this and every other front when it comes to removing barriers in the workplace,” Holcomb told the Indiana Capital Chronicle in a statement.

Several other Republican lawmakers pushed to make 2021’s House Enrolled Act 1309 stronger, but two subsequent Senate bills died in the Pensions and Labor Committee, led by Granger Republican Linda Rogers, without a hearing.

Bauer offered an amendment to the 2021 bill with some penalties and requirements for employers to comply with “reasonable” requests but it failed on a 68-30 vote, with just one Republican — Rep. Cindy Ziemke of Batesville — voting for the measure.

Businesses hesitant

As detailed by A Better Balance, business groups like the U.S. Chamber of Commerce hedged codifying protections because its members feared it would be burdensome and increase litigation.

Passing state-level guarantees to accommodations in Massachusetts and Kentucky relied heavily on getting buy-in from these groups, and opposition from the Indiana Chamber limited the Hoosier State’s version.

Ashton Eller, the Indiana chamber’s vice president of health care policy and employment law, said businesses needed “regulatory certainty.”

“Some of the concerns with previous parts of state legislation is how that regulatory environment would intersect with federal legislation that’s already on the books,” he said. “(PWFA) kind of clears up some regulatory uncertainty whereas previous proposed state legislation would kind of muddy the waters by providing different accommodations or different levels of bureaucratic work for employers by having different state standards (than) federal standards.”

Eller said the chamber still had concerns that smaller businesses would struggle to accommodate their pregnant workers, thus the need for the “undue hardship” exception.

But Bauer said she felt state-level legislation should still pass in order to guarantee protections for pregnant workers no matter what future actions the federal government might take.

“I have heard so many stories from families who experienced (a lack of accommodations) working while pregnant. From being asked not to come back after they gave birth … or (having) to leave because they did not have time off after their pregnancy. Stories of child loss and missed prenatal appointments,” she said.

“We recognize that we need to do more to invest in healthier women and pregnancies,” Bauer continued. “I know that there are many people who will be thrilled and this will make a difference in the state of Indiana. Those stories, hopefully, won’t be shared with us (legislators) in the future.”

By Whitney Downard. The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.