Tag: Pregnant

  • ICE Fears Put Pregnant Immigrants and Their Babies at Risk – The 74

    ICE Fears Put Pregnant Immigrants and Their Babies at Risk – The 74

    In the lead up to her son’s birth, Jacqueline made plans to call 911 for an ambulance to pick her up from her North Florida home and transport her to a hospital about an hour away.

    The second-time mom and Guatemalan immigrant, who has lived in the country for a decade, would have relied on her husband to drive her to the hospital. But a few months ago he was deported, leaving Jacqueline and her daughter without the family’s primary source of income, transportation and support.

    One morning in March, Jacqueline said, her partner was pulled over on his way to work when law enforcement officials discovered he didn’t have a valid driver’s license. Jacqueline’s pregnancy was in its early stages. Her husband fought his case from detention for three months before U.S. Immigration and Customs Enforcement (ICE) removed him to Guatemala.

    “He was deported and I was left behind, thinking, ‘What am I going to do?’” said Jacqueline, who requested that her last name not be published because she lacks permanent legal status. The couple shares an 8-year-old daughter who was born in, and is a citizen of, the United States.

    This summer, as she entered the later stages of this pregnancy amid the Trump administration’s turbocharged immigration enforcement, Jacqueline found herself so fearful of being detained that she avoided leaving her home. Her husband’s car sits in the driveway, but there are no signs of him in the small room Jacqueline shares with her daughter. His belongings — tools, clothes, even personal photos — are with him in Guatemala. The only family pictures Jacqueline has are on her phone.

    Her partner was the family’s main provider, rotating between picking strawberries or watermelon and packing pine needles for mulch, depending on the season.

    Jacqueline struggled to get the most basic items to welcome a baby: Someone gifted her a used carseat and crib, which sit in the packed room along with onesies and other clothing items she’s collected inside a large plastic bag. She’s hoping that a federal assistance program will cover the cost of formula. A baby tub is still on her list.

    Medical care in her rural area has been possible only because a small nonprofit organization nearby that provides prenatal care services offered to pay for Ubers so she could continue regular check-ups. Even if she wasn’t behind the wheel, Jacqueline says that just the act of leaving her home feels risky since her husband’s deportation.

    “Things got really complicated. He paid our rent — he paid for everything,” she said. “Now, I’m always worried.”

    At her home in North Florida, Jacqueline looks at a photo of her husband and daughter on her phone. The only family pictures she has are on her phone; her husband’s belongings — tools, clothes, even personal photos — are with him in Guatemala. (Michelle Bruzzese for The 19th)

    Medical care and support essential to a healthy pregnancy have become harder for people like Jacqueline to obtain following President Donald Trump’s inauguration. Many patients — nervous about encountering immigration officials if they leave their homes, drive on public roads or visit a medical clinic — are skipping virtually all of their pregnancy-related health care. Some are opting to give birth at home with the help of midwives because of the possible presence of ICE at hospitals.

    Across the country, medical providers who serve immigrant communities said fewer patients are coming in for prenatal or other pregnancy-related care. As a result, patients are experiencing dangerous complications, advocates and health care providers told The 19th.

    “Fear of ICE is pushing my patients and their families away from the very systems meant to protect their health and their pregnancies,” said Dr. Josie Urbina, an OB-GYN in San Francisco.

    In January, Trump rescinded a federal policy that protected designated areas including hospitals, health clinics and doctors’ offices from immigration raids. ICE has recently targeted patients in hospital maternity wards and on their way home from prenatal visits.

    A majority of Americans believe ICE should not be carrying out immigration enforcement at health centers. A new poll from The 19th and SurveyMonkey conducted in mid-September found that most Americans don’t think ICE should be allowed to detain immigrants at hospitals, their workplace, domestic violence shelters, schools or churches.

    Women are more likely to oppose enforcement in these spaces than men. More than two-thirds of women said ICE shouldn’t be allowed to detain immigrants in hospital settings.

    Enforcement is only expected to grow as the administration works to meet its ambitious deportation goals. The federal government is pouring more than $170 billion over the next four years into expanding immigration enforcement, the result of Trump’s signature tax-and-spending bill. About $45 billion has been directed to expanding detention facilities; $29.9 billion is to increase ICE activity.

    That expansion could put even more births at risk. Approximately 250,000 babies are born every year to immigrants without permanent legal status. Already, research has shown these immigrants, who have higher uninsured rates, are less likely to seek prenatal care and are at risk of worse birth outcomes.

    Major medical groups, including the American College of Obstetrics and Gynecologists, World Health Organization and the Centers for Disease Control and Prevention (CDC) recommend regular prenatal and postpartum care as a key tool to combat pregnancy-related death and infant mortality.

    According to the federal Office of Women’s Health, infants born to parents who received no prenatal care are three times more likely to have a low birth weight and five times more likely to die than those born to parents who received regular care.

    A CDC analysis published last year found infant mortality rates went up the later families began prenatal care: 4.54 deaths per 100,000 live births for families whose prenatal care began in the first trimester, compared with 10.75 in families whose prenatal care began in the third trimester or who did not receive any at all.

    “A lot of patients aren’t going to get help,” said Yenny James, the founder and CEO of Paradigm Doulas in the Dallas-Fort Worth metro.

    A pregnant woman stands in silhouette inside a dark doorway, holding her belly and looking outside toward the sunlight and trees.
    After her husband’s deportation, Jacqueline became so fearful of being detained that she avoided leaving her home. “He was deported and I was left behind, thinking, ‘What am I going to do?’” she said. (Michelle Bruzzese for The 19th)

    James said she’s seeing an increasing number of emergency cesarean sections  because of untreated gestational diabetes, or preeclampsia — a deadly pregnancy complication — that went unnoticed because of lacking prenatal care.

    In Denver, OB-GYN Dr. Rebecca Cohen has delivered multiple babies this year for women who have told her that, because they fear endangering themselves or their families, they have received no prenatal care. Several have given birth to babies with fatal fetal anomalies that were never diagnosed because the women did not receive prenatal ultrasounds.

    “They were willing to forgo care — their own health care — but to find out that something was devastatingly wrong with their child is when they feel like maybe they should have risked it,” Cohen said. “There’s a sound of a mother’s wail that anybody who has worked labor and delivery has known, and it will haunt you for the rest of your life. To hear that when it could have been prevented, it is just absolutely devastating.”

    Early in her pregnancy, Jacqueline received free care at a local clinic. Shortly after her husband’s detention, she called the office to let them know she likely wouldn’t make her next appointment.

    “I told them that I probably wouldn’t be able to make my appointments anymore, well, because I’m really afraid given what happened to my husband. And they offered to help,” she said.

    Jacqueline and the nonprofit clinic worked out an arrangement: The day of her appointments, someone at the clinic called an Uber to her home, paid for by the clinic, and let her know when it would arrive so she could be ready.

    Many people in her small town have come to rely on a single person who does have a valid driver’s license for transportation. That driver recently brought Jacqueline to an appointment with the local office that manages the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), which she is relying on for baby formula and food. There were no guarantees that this driver would be available to take her in whenever she goes into labor.

    The Biden administration directed ICE not to detain, arrest or take into custody pregnant, postpartum or breastfeeding people simply for breaking immigration laws, except under “exceptional circumstances.” The Trump administration has not formally reversed that policy. But despite the directive, reports from across the country confirm that ICE has detained numerous pregnant immigrants since Trump took office.

    James said that until the Biden guidance is formally rescinded, she will continue to encourage pregnant immigrants to print it out and carry it with them.

    “I told my doulas — have them print out this ICE directive, have them keep it with them, so that they know and these agents know that we know our rights, our clients know their rights,” James said.

    A pregnant woman bends over a bed, sorting through baby items in a small, crowded bedroom with blue-painted door frames.
    Jacqueline prepares for the birth of her second child in the room she shares with her daughter. Someone gifted her a used car seat and crib, which sit among the few items she’s collected inside a plastic bag to welcome the baby. (Michelle Bruzzese for The 19th)

    It’s unclear exactly how many pregnant immigrants are being detained by ICE, or have been arrested by the agency. A May report from the office of Democratic Sen. Dick Durbin found 14 pregnant women in a single Louisiana detention facility at the time of staff’s visit.

    Another report out of the office of Democratic Sen. Jon Ossoff published in late July found 14 credible reports of mistreatment of pregnant women in immigrant detention. The report cited an anonymous agency official who said they saw pregnant women sleeping on floors in overcrowded intake cells. The partner of a pregnant woman in federal custody said that she bled for days before she was taken to a hospital, where she miscarried alone. A pregnant detainee who spoke to Ossoff’s office said she repeatedly asked for medical attention and was told to “just drink water.” The office received several reports of clients waiting weeks to see a doctor, and that sometimes scheduled appointments were canceled. ICE has disputed the report.

    “Pregnant women receive regular prenatal visits, mental health services, nutritional support, and accommodations aligned with community standards of care. Detention of pregnant women is rare and has elevated oversight and review. No pregnant woman has been forced to sleep on the floor,” ICE said in a statement posted on their website.

    ICE did not respond to a request for comment.

    Fear of being detained is a major contributor of stress for pregnant immigrants. Research shows that even when pregnant patients do receive medical care, prenatal stress puts many at greater risk of complicated births and poor outcomes, including premature birth and low infant birth weight. Babies born after an immigration raid are at a 24 percent higher risk of low birth weight, according to one study.

    Monica, 38, is expecting her fourth child in November. The Tucson resident, who requested that her last name not be published out of fear of being detained, has lived in the United States for two decades but has no legal immigration status.

    This pregnancy has been unlike the others, she said: While Monica has continued with her prenatal care appointments, her anxiety levels about her immigration situation have colored her experience. Her other children, who are in their teens, are U.S. citizens but grappling with the stress of their parents’ situation. Her husband also doesn’t have authorization to live in the country.

    “We try to be out and about much less, and to take precautions,” she said. “Whenever we do leave the house, we have it in the back of our minds.”

    Monica said she has seen reports of ICE being allowed inside hospitals, and she is worried about facing immigration officers while or following her birth. Her plan is to have her partner and a group of friends at the hospital to make sure she’s never alone.

    “My biggest fear is going to the hospital,” she said.

    Stress like Monica’s makes pregnancy more dangerous.

    A close-up of a hand holding a white bottle labeled “Prenatal Tablets” over a bag filled with baby bottles and other supplies.
    Jacqueline holds a bottle of prenatal vitamins at her home in North Florida. A small nonprofit clinic nearby has been paying for Ubers so she can continue her prenatal check-ups. (Michelle Bruzzese for The 19th)

    “In our hospital, every doctor I’ve talked to — and these are doctors that have been there 20 years — all are saying these past six months they’ve seen worse obstetrics outcomes than ever in their career,” Dr. Parker Duncan Diaz, a family physician in Santa Rosa, California, whose clinic mostly cares for Latinx patients. That’s included more preterm labor and more pregnant patients with severe hypertension.

    “I don’t know what’s causing it, but my bias is that it is the impact of this horribly toxic stress environment,” he added, specifically noting the stress caused by the threat of immigration enforcement.

    In recent months, Dr. Caitlin Bernard, an Indiana-based OB-GYN, has seen a number of pregnant patients seeking emergency attention who have not received any prenatal health care. One was 31 weeks, approaching the end of her pregnancy. Another was more than 20 weeks pregnant when she came to Bernard’s office, having developed complications from a molar pregnancy — a rare condition that means a healthy birth is impossible and that without early treatment can result in vaginal bleeding, thyroid problems and even cancer.

    “Anytime you’re not able to access that early prenatal care, we do see complications with that,” she said. “And many of these things can absolutely be life-threatening for both the moms and the babies.”

    Dr. Daisy Leon-Martinez, a maternal-fetal medicine specialist in San Francisco, said she now regularly cares for patients in her labor and delivery ward who have been transferred to her hospital because of newly developed pregnancy complications. These are often their first doctors’ visits since becoming pregnant. Many of those patients have told her that they did not want to seek prenatal care for fear of encountering immigration officials.

    During regular visits, she added, she has advised people with pregnancy complications that they would be best served by a hospital stay — only to be told that her patients no longer feel safe going to the hospital.

    The current enforcement environment is challenging immigrant advocates, who are continuing to encourage immigrants to seek appropriate medical care while acknowledging that doing so is increasingly risky.

    Lupe Rodríguez, the executive director of the National Latina Institute for Reproductive Justice, said her organization is urging pregnant immigrants to seek the health care that they need, and to be proactive about making plans for themselves and their families in the event that they are detained.

    “We can’t know for certain about any given [health care center] whether or not it’s going to be safe. One of the things that we’ve been seeing is leadership at some of these health centers — big hospitals and clinics — have said that they will provide the kind of protection that folks need, that they don’t want folks to be afraid of care,” Rodriguez said.

    While those statements signal the intentions of a hospital’s leadership, Rodriguez said, “we still know that there are individuals within some of those care centers that are part of the reporting mechanism or are intimidating people.”

    A pregnant woman sits in a red folding chair outdoors near a blue truck, with a chicken walking in the foreground and trees around her.
    Outside her home in North Florida, Jacqueline sits in a red chair as a chicken wanders nearby. (Michelle Bruzzese for The 19th)

    Jacqueline approached the last days of her pregnancy hopeful that the place she had chosen — a large university hospital that workers at her local clinic recommended — would be a safe place for her to give birth.

    One night at the end of September, when labor pains grew too intense, she called for an ambulance and made it to the hospital. When she got there, she asked her providers if there were any ICE agents near the building. She had heard of a man at a local hospital being detained after having surgery. They told her there were none they were aware of.

    She went on to deliver her baby under general anesthesia after a long, difficult labor. “I didn’t even hear him cry when they pulled him out,” she said. Her only relative left in the area was taking care of her daughter, so she recovered alone at the hospital for five days before heading home in an Uber that a social worker procured for her and her son.

    “If my husband was here, he would have been there with me at the hospital,” Jacqueline said while recovering at home. “He would be here taking care of me, of us. I wouldn’t be worried about the things I still want to get for the baby.”

    This story was originally reported by Mel Leonor Barclay and Shefali Luthra of The 19th. Meet Mel and Shefali and read more of their reporting on gender, politics and policy.


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  • EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

    by CUPA-HR | April 17, 2024

    On April 15, 2024, the Equal Employment Opportunity Commission issued its long-awaited final regulations and interpretative guidance on the implementation of the Pregnant Workers Fairness Act (PWFA). The EEOC states in its press release that the final rule is intended to offer “important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.” It provides guidance to employers and workers “about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations.” The regulations will be published in the Federal Register on April 19 and go into effect 60 days later.

    The PWFA, which was signed into law in December 2022, requires most employers with 15 or more employees “to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” It passed Congress with strong bipartisan support.

    Known Limitations

    Under the regulation, “limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The regulations specify that the definition of a limitation “shall be construed broadly to the maximum extent permitted by the PWFA.” A limitation “may be a modest, minor, and/or episodic impediment or problem” and can be related to current or past pregnancies, potential or intended pregnancies, and labor and childbirth.

    The examples of limitations provided in the rule include miscarriage or stillbirth, migraines, lactation, postpartum depression, and pregnancy-related episodic conditions, such as morning sickness, but the list is not intended to be exhaustive. The limitation may be “a need or a problem related to maintaining [the worker’s] health or the health of the pregnancy,” and it “need not be caused solely, originally, or substantially by pregnancy or childbirth.” Related medical conditions can include conditions that existed before pregnancy or childbirth but are exacerbated by the pregnancy or childbirth.

    The employee or their representative must communicate the limitation to the employer to receive a reasonable accommodation. The employee and employer should engage in an interactive process to determine if a worker’s limitation qualifies for a reasonable accommodation and the appropriate accommodation.

    Reasonable Accommodations

    Under the final rule, “reasonable accommodations” have the same definition as under the Americans with Disabilities Act. They include modifications or adjustments to the application process, to the work environment or how the work is performed, and that allow the employee to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without known limitations. It also includes modifications or adjustments to allow a covered employee to temporarily suspend one or more essential functions of the job.

    The rule provides several examples of reasonable accommodations that may be appropriate under the act. These include but are not limited to additional breaks, allowing the worker to sit while they work, temporary reassignment or suspension of certain job duties, telework, or time off to recover. Leave can be requested even if the employer does not offer leave as an employee benefit, the employee is not eligible for the employer’s leave policy, or the employee has used up their allotted leave under the employer’s policy.

    Reasonable accommodations are limited to the individual who has a PWFA-covered limitation; it does not extend to an individual who is associated with someone with a qualifying limitation or someone with a limitation related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical condition. The regulations specifically clarify that “time for bonding or time for childcare” are not covered by the PWFA.

    Undue Hardship

    The rule explains that an employer does not have to provide a reasonable accommodation if it would cause an “undue hardship,” or a significant difficulty or expense. The rule includes a variety of factors that should be considered when determining if a reasonable accommodation would impose an undue hardship, including the nature and net cost of the accommodation; the overall financial resources of the facility or covered entity; the type of operations of the covered entity; and the impact of the accommodation on operations, including on the ability of other employees to perform their duties or the facility’s ability to conduct business.

    The rule provides several factors to consider when analyzing whether an accommodation involving the temporary suspension of essential functions of the position qualifies as an undue hardship. These include the length of time the employee will not be able to perform the essential function; whether there is work for the employee to accomplish; the nature of the essential function; the employer’s history of providing temporary suspensions to other, similarly situated employees; whether other employees can perform the functions; and whether the essential functions can be postponed.

    Other Provisions

    The rule also encourages “early and frequent communication between employers and workers” in order “to raise and resolve requests for reasonable accommodation in a timely manner.” Employers are also instructed that they are not required to request supporting documentation when an employee asks for a reasonable accommodation; they should only do so when it is reasonable under the circumstances.

    Controversies Surrounding the Regulations

    While the PWFA was passed by Congress with strong bipartisan support, the EEOC has faced significant pushback about the implementing regulations.

    The EEOC’s delay in issuing these regulations caused considerable frustration from employers. The PWFA went into effect in June 2023, which was when employers were required to comply with the law and the EEOC began accepting claims of discrimination under the act. Without the implementing regulations, however, employers had no certainty as to how to comply, leaving them exposed to potential liability.

    The most significant criticism stemmed from the regulation’s implications around abortion. In fact, of the nearly 100,000 comments the EEOC received in response to its notice of proposed rulemaking on the regulations, over 96,000 discussed the regulation’s inclusion of abortion. The final rule clarifies that “having or choosing not to have an abortion” qualifies as a medical condition under the regulations. Several Republican members of Congress accused the EEOC of using the regulations to further the Biden administration’s pro-choice agenda. EEOC Chair Charlotte Burrows, however, defended the language, saying it is consistent with legal precedent and the agency’s interpretations of other civil rights statutes under their jurisdiction. The regulation clarifies that employers will not be required to pay for abortions or travel-related expenses for an employee to obtain an abortion. The EEOC specifies they expect the most likely accommodation related to abortion will be leave to attend a medical appointment or recover from a procedure. Several conservative organizations are threatening legal action against the final rule.

    Litigation Challenging the PWFA

    On February 27, 2024, a federal district court in Texas ruled that the House of Representatives lacked a quorum when it passed the PWFA, because over 200 representatives voted by proxy. The Constitution required that a quorum be present for the House to conduct business, but in response to the COVID-19 pandemic, the House allowed for proxy voting. The court found Congress violated the Constitution when it passed the law and blocked enforcement of the act against the state of Texas and its agencies. The law is in effect elsewhere in the United States, but other legal challenges may follow Texas’s approach.



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  • December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    December Policy Roundup: Paid Leave Policy, Pregnant Workers Fairness Act Regulations, and Workforce Development Initiatives – CUPA-HR

    by CUPA-HR | January 10, 2024

    Through December and into the new calendar year, federal government leaders kept busy with Congressional hearings and markups, new legislation, and proposed and final rules focusing on issues that may be of significance to higher education HR professionals. CUPA-HR tracked several actions from both Congress and federal agencies on issues including paid family leave, short-term Pell Grants, the Pregnant Workers Fairness Act, and workforce development.

    House Education and Workforce Committee Markup

    On December 12, 2023, the House Committee on Education and the Workforce held a full committee markup on H.R. 6585, the Bipartisan Workforce Pell Act, and H.R. 6655, A Stronger Workforce for America Act.

    The Bipartisan Workforce Pell Act aims to amend the Higher Education Act of 1965, allowing students to use Pell Grants for eight-week or longer educational programs. This bill also establishes quality control measures for Pell initiatives, enabling higher education institutions to participate if they meet specific criteria. The committee voted to move the legislation out of committee with 37 members voting in favor and 8 members voting against the bill.

    The next bill, A Stronger Workforce for America Act, seeks to renew and enhance the Workforce Innovation and Opportunity Act (WIOA). Originally established in 2014, WIOA has been extended through yearly appropriations since fiscal year 2021. The bill incorporates multiple measures to modernize WIOA, bolstering the country’s workforce development to better equip and retain workers. The bill passed through the committee with bipartisan support; 44 members voted in favor of and only one member voted against it.

    Paid Leave Request for Information

    On December 13, the Congressional Bipartisan Paid Family Leave Working Group published a Request for Information (RFI) for diverse stakeholder input to aid in the expansion of access to paid parental, caregiving, and personal medical leave nationwide. The members encouraged interested stakeholders to submit letters that answer these ten questions on the role the federal government can play in creating a national paid leave program.

    Responses must be submitted by January 31, 2024, and can be directed to [email protected], [email protected], [email protected], and [email protected]. CUPA-HR will continue to track developments and intends to collaborate with associate organizations to submit feedback on an as-needed basis.

    National Apprenticeship System Enhancement Proposed Rule

    On December 14, the Department of Labor (DOL) unveiled a proposed rule to modernize the regulations for Registered Apprenticeship programs. The 779-page proposal focuses on provisions to create “safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program,” while also creating baseline requirements for career and technical education apprenticeships, which would target high school and postsecondary students to programs that align more closely with programs found at institutions of higher education.

    DOL is providing a 60-day comment period for the proposed rule, which will commence once the regulation is posted in the Federal Register. CUPA-HR is analyzing the rule and will coordinate with other higher education associations as needed to file comments.

    Federal Transit Authority General Directive on Assaults on Transit Workers

    On December 20, the Department of Transportation (DOT)’s Federal Transit Administration (FTA) proposed a General Directive to address the ongoing national safety risk concerning assaults on transit workers. Transit agencies falling under FTA’s Public Transportation Agency Safety Plans directive would be instructed to conduct safety risk assessments, identify mitigation strategies, and report discoveries to FTA. Per the Bipartisan Infrastructure Law, transit agencies operating in urban areas must collaborate with the joint labor-management safety committees to reduce safety hazards.

    The deadline for submitting comments in the Federal Register is February 20, 2024, but late submissions may be considered. CUPA-HR is working with members and other higher education associations to determine the impact that this directive may have on transportation and HR services at institutions of higher education.

    Regulations to Implement the Pregnant Workers Fairness Act

    On December 27, the Equal Employment Opportunity Commission (EEOC) sent its final rule to implement the Pregnant Workers Fairness Act (PWFA) to the Office of Information and Regulatory Affairs (OIRA) for review prior to its publication in the Federal Register. The final rule will likely look very similar to the proposed rule that was issued in August 2023, which provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    The EEOC was tasked by law with finalizing regulations to implement the PWFA by December 29, 2023. Given the missed deadline, OIRA may move quickly on its review of the regulations, and we could see the final rule published sometime between late January and late February. CUPA-HR is continuing to monitor for any updates and will keep members apprised of any new details that may arise in the final rule.



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  • EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    by CUPA-HR | August 28, 2023

    On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees. 

    Purpose and Definitions 

    Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.” 

    Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria: 

    • Any inability to perform an essential function is for a temporary period 
    • The essential function could be performed in the near future 
    • The inability to perform the essential function can be reasonably accommodated 

    The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.  

    Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.  

    Reasonable Accommodations 

    The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation. 

    The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.  

    Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are: 

    • Allowing employees to carry water and drink, as needed, in the work area 
    • Allowing employees additional restroom breaks 
    • Allowing employees to sit or stand when needed 
    • Allowing employees breaks, as needed, to eat and drink 

    Supporting Documentation 

    The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation. 

    Remedies and Enforcement 

    The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA. 

    Next Steps 

    The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented. 

    The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.  

    CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.



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  • Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

    Congress and Federal Agencies Consider Paid-Leave Proposals and Protections for Pregnant and Nursing Workers – CUPA-HR

    by CUPA-HR | May 24, 2023

    Over the past year, lawmakers have taken an increased interest in establishing and expanding upon benefits and protections for paid leave and pregnant workers. As a result, Congress passed two bills granting workplace protections to pregnant and nursing mothers at the end of 2022, while  considering new federal proposals for paid family and medical leave. This post details some of the recent actions taken by lawmakers toward a federal paid-leave policy, as well as updates from federal agencies on the enforcement of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.

    Bipartisan Working Group on Paid Leave

    In April, a group of bipartisan lawmakers in the House of Representatives established the Bipartisan Paid Family Leave Working Group, the goal of which “is to create a bipartisan paid family leave policy that supports American families and businesses.” The group consists of three Republicans — Reps. Stephanie Bice (R-OK), Julia Letlow (R-LA) and Mariannette Miller-Meeks (R-IA) — and three Democrats — Reps. Chrissy Houlahan (D-PA), Colin Allred (D-TX) and Haley Stevens (D-MI).

    In a letter establishing the working group, the lawmakers expressed their intention to explore both state and federal policies that already exist with the goal of creating an established paid-leave policy. The letter discusses both the successes and areas to improve of the Family and Medical Leave Act, and it states that there is a bipartisan consensus that paid leave is an issue that needs to become law.

    FAMILY Act

    On May 17, Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT) reintroduced the FAMILY Act, which would grant up to 12 weeks of paid leave for employees at companies of all sizes through funds collected by payroll taxes paid by both employees and employers. The FAMILY Act was first introduced in 2013, but the most recent bill expands upon previous text by creating a progressive scale for wage replacement during the time off. Under the bill, the lowest paid workers would be eligible to receive up to 85 percent of their wages during their time off, while the average full-time worker would receive approximately two-thirds of their wages. Additionally, the bill extends coverage to include time off taken to address personal incidents with domestic violence, stalking and/or sexual assault.

    While most Democrats have championed the FAMILY Act as their preferred proposal for paid leave, the bill is unlikely to gain Republican support and will therefore not pass the House during this Congress. Republicans have previously opposed the bill, arguing against the proposed tax increases as well as potential burdens employers may face as a result of a paid-leave mandate. Instead, Republicans who have shown interest in advancing paid-leave policies have considered programs allowing individuals to borrow from their Social Security funds, incentivizing the creation of a private insurance system for leave pay, and providing tax credits to pay for time off.

    PUMP for Nursing Mothers Act

    On May 18, the Department of Labor Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) with enforcement information and public guidance for the PUMP for Nursing Mothers Act. The law went into effect on April 28, after being included in the Consolidated Appropriations Act of 2023 year-end legislation to fund the federal government.

    As a reminder, the PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. Specifically, the bill ensures reasonable time and space for working individuals to pump in their workplaces as well as remedies for employer violations of the act.

    The FAB provides details on the requirements for reasonable space and break time, compensation, and employer posting of FLSA requirements as provided under the PUMP for Nursing Mothers Act. Employers and field staff alike may use the FAB document as a resource to understand compliance with the act as enforced by WHD.

    Pregnant Workers Fairness Act

    Alongside the PUMP for Nursing Mothers Act, the PWFA was also signed into law under the Consolidated Appropriations Act of 2023. The effective date of the PWFA is June 27, and the Equal Employment Opportunity Commission (EEOC) was expected to issue proposed regulations on how best to govern and enforce the PWFA by then.

    As of May, however, the EEOC has yet to release any proposed regulations, and it seems likely that the agency will not be able to issue a proposed rule by the June 27 date. The commission currently has two Democratic and two Republican commissioners, and given the need for a majority of commissioners to vote to advance a rulemaking, the agency is unable to move proposed rules forward because commissioners are split along party lines. Through the legislation, Congress has allowed the EEOC through the end of 2023 to finalize a rulemaking on the PWFA, which may or may not be achieved,  depending on whether the Senate is able to confirm Kalpana Kotagal as the third Democratic appointee on the commission. In lieu of the proposed rulemaking, the EEOC has issued guidance on the law through an FAQ webpage addressing the protections granted under the law, which stakeholders may use as they wait for the official regulations.

    CUPA-HR continues to monitor any developments related to these proposals and laws and will keep members apprised of any policy updates related to paid leave and protections for pregnant and nursing workers.



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  • Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    Retirement Plan Changes and Workplace Protections for Pregnant Workers Included in Fiscal Year 2023 Omnibus Bill – CUPA-HR

    by CUPA-HR | January 10, 2023

    On December 29, 2022, President Biden signed the $1.7 trillion Consolidated Appropriations Act of 2023 (omnibus bill) to fund the federal government through fiscal year 2023 (FY 2023). Given the “must-pass” nature of the bill, the omnibus bill also served as a vehicle for policy unrelated to government funding that was unlikely to pass as a standalone bill in Congress. Below outlines some of the highlights that will impact higher education generally and human resources specifically.

    SECURE 2.0

    Notably, the new law includes changes to the access and use of individual retirement funds. Provisions from a package of retirement-related bills, referred to as SECURE 2.0, were ultimately included in the final omnibus package. Specifically, the new law included the following provisions, in addition to others not listed here:

    • Automatic 401(k) and 403(b) plan enrollment: The new law requires employers to automatically enroll employees into newly created 401(k) and 403(b) retirement plans at a rate between 3 to 10 percent of eligible wages. Employees will then have the option to opt out of the enrollment. Employers with 10 or fewer employees and companies in business for less than three years are excluded from this requirement.
    • Expanded eligibility for part-time employees: The law requires employers to provide the option to participate in employer retirement plans for part-time employees who work between 500 and 999 hours for at least two consecutive years (lowered from three consecutive years previously required).
    • Emergency expenses and savings accounts: Employees would be allowed to withdraw up to $1,000 from retirement accounts for qualified emergency expenses without facing early withdrawal penalties if the worker is under 59.5 years old. Additionally, the law allows employers to offer employees an emergency savings account through payroll deductions for amounts up to $2,500.
    • Matching employer contributions for student loan payments: Employers will be allowed to make contributions to their company retirement plan on behalf of employees who are paying student loans and are not contributing to a retirement account as a result.
    • Roth treatment of employer contributions: The new law grants employers the option to amend their retirement plans and allow employees to choose their employer’s matching and non-elective contributions to be made as Roth contributions.
    • Multiple Employer and Pooled Employer Plans for 403(b) plans: The new law allows employers to participate in Multiple Employer Plans (MEPs) and Pooled Employer Plans (PEPs) for 403(b) plans.

    The final law also included several changes to individual activity with respect to their retirement plans, including an increase to the “catch-up” contribution limits of up to $10,000 for older retirement savers and an increase to the age an individual is required to begin taking minimum distributions from their retirement accounts, which is now effective at age 73 and effective at age 75 effective in 2033.

    Workplace Protections for Pregnant Workers

    Additionally, Congress was able to agree on the inclusion of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers in the omnibus bill.

    Pregnant Workers Fairness Act

    Passed by the House in May 2021, the PWFA specifically declares that it is an unlawful employment practice for employers with 15 or more employees to do any of the following:

    • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
    • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
    • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
    • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
    • take adverse action in terms, conditions or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

    Though the bill enjoyed bipartisan support in both the House and Senate, Republicans opposed bringing the bill to a Senate vote without the inclusion of a religious exemption for employers. Such exemptions were provided in the omnibus bill’s version of the PWFA, ultimately helping lead to its passage.

    PUMP for Nursing Mothers Act

    The PUMP for Nursing Mothers Act passed the House of Representatives in October 2021 with bipartisan support. The bill aims to amend the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds upon existing protections in the 2010 Breaktime for Nursing Mothers Act by broadening breastfeeding accommodations and workplace protections. In the new law, the PUMP for Nursing Mothers Act is expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Similar to the PWFA, the PUMP for Nursing Mothers Act did not reach a Senate floor vote, leaving the omnibus bills as one of the last options for passage before the 117th Congress’s term expired.

    Immigration Provisions

    Due to the situation at the southern border, the new law excluded any major immigration overhauls, such as the Equal Access to Green cards for Legal Employment (EAGLE) Act, which would have addressed the immigration visa backlog and made changes to the H-1B visa program. Additionally, protections for the Deferred Action for Childhood Arrivals (DACA) program and Dreamers that have been threatened by recent court decisions were not included in the final bill enacted into law.

    Despite the exclusion of important reforms, the new law reauthorized several expiring immigration programs that are already utilized by institutions of higher education, including additional funds for the E-Verify program.

    Higher Education Funding

    Several provisions were included in the omnibus package that will increase funding for a variety of higher education programs. Notably, the bill includes a $500 increase to the maximum Pell Grant a recipient can receive, raising the total to $7,395 for the 2023-24 award year. Additionally, the bill included funding increases for Federal Work-Study grants, Title III and V programs, Postsecondary Student Success Grants, and the TRIO and GEAR UP programs.

    CUPA-HR will continue to analyze the provisions included in the FY 2023 funding bill and will keep members apprised of any additional noteworthy provisions included in the law.



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