Final rules for the Pregnant Workers Fairness Act are now published (deadline for publication was December 29, 2023).  The following should be your priority actions to ensure compliance and success with the new law.

1. Read rules cover-to-cover. Read the footnotes, too. This is a new federal law. Do not prejudge what is expected of employers and other stakeholders. Read for comprehension. Be aware of oshafied bias. Oshafy is analogous to ossify; meaning become rigid or fixed in attitude or position; cease developing: “he/she has become oshafied and may never understand the PWFA’s occupational health concepts.” An oshafied person may be identified by asking them, “What is the definition of DNEL, derived no effect level?” The answer should be one sentence with eleven words.

2. Be aware of the law’s secondary objective. The primary objective of the PWFA is for employers to provide reasonable accommodation so that pregnant workers can remain healthy, and have a healthy pregnancy, at their jobs. The secondary objective (quietly promoted) is to help increase our nation’s birth rate. World leaders, particularly in rich countries, are making grand attempts to increase births in their country beyond the replacement rate of 2.1. In June 2023, the People’s Republic of China abolished all fines regarding the number of children a family may have, “effectively removing government limits on the number of children a family may have” (see Wikipedia “Three-child” Policy). Russian President Vladimir Putin urged Russian women in November 2023 to have as many as eight children and make large families the norm. The United States and every country in the European Union have a national birth rate significantly less than 2.1. If a nation’s birth rate remains too low for too long, that nation’s economy may topple.  The PWFA needs to be successful for the U.S. economy to be successful.  

3. Determine if your workplace is in, or may become located in, a “maternity care desert.” The March of Dimes defines a maternity care desert “as any county without a hospital or birth center offering obstetric care and without obstetric care providers.” In 2022, the March of Dimes determined that 36 percent of all U.S. counties were designated as maternity care deserts. A main cause of maternity care deserts is too few children being born in the county. In November 2023, I visited a manufacturing client in NW Tennessee. The only birth center in the county where the client is located closed in September 2023. The nearest birth center within the state is now about one hour away from the client’s location. The county will add to the maternity care desert statistics in 2024. Maternity care deserts will have a negative impact on the success of the PWFA.  Obstetric care providers that include obstetricians/gynecologists and nurse midwives/certified midwives are professional and realize that most work is safe for a pregnant worker and safe for her pregnancy.  Lacking professional obstetric care, the pregnant worker will get all types of advice of what is safe/unsafe in the workplace for her health and the health of her pregnancy. Misinformation will spill over into the workplace. For various reasons, pregnant workers in maternity care deserts show higher rates of maternal/infant mortality and morbidity. Learn more about this topic. Search online for "Nowhere to go: Maternity care deserts across the U.S. 2022 Report."

4. Be aware that the PWFA final rules are released during a very challenging time regarding maternal and infant health. The following is extracted from the November 2023 CDC report (Infant Mortality in the United States: Provisional Data From the 2022 Period Linked Birth/Infant Death File). The provisional infant mortality rate for the United States in 2022 was 5.60 infant deaths per 1,000 live births, 3% higher than the rate in 2021 (5.44) – the first year-to-year increase in over twenty years. The neonatal mortality rate increased 3% from 3.49 to 3.58 and the postneonatal mortality rate by 4% (from 1.95 to 2.02).  From 2021 to 2022, infant mortality rates increased significantly for infants of women ages 25-29, from 5.15 to 5.37.  Mortality rates increased significantly for total preterm (less than 37 weeks of gestation) and early preterm (less than 34 weeks of gestation) infants. The mortality rate increased significantly for male infants from 2021 to 2022.  Learn more. Search online: "The 2023 March of Dimes Report Card: The State of Maternal and Infant Health for American Families".

5. Understand the difference and significance when PWFA final rules speak of the pregnant worker’s health and the health of her pregnancy.  Search "Snyder v. Michael’s Stores, Inc. (1997)" and read the case review. The review should self-explain why risks are evaluated on this topic now that the PWFA is in full swing. Thomas A. Robinson, who has reviewed more than 60,000 appellate court decisions, named Synder v. Michael’s Stores to be among the “10 most significant workers’ compensation appellate decisions” over the past 100 years (1923-2023). I used the rationale and ruling from Synder over twenty-five years ago to convince a Fortune 200 company and other businesses and organizations to implement reproductive and development health programs. Because of Synder, I continue to encourage employers to adopt the DNEL for carbon monoxide at 20 ppm (federal OSHA PEL is 50 ppm) and follow similar best practices to manage liability related to the workplace and “unborn child” i.e., OSHA hazcom term since 2012.

6. Although the PWFA does not want employers to determine alone the health needs of a pregnant worker, the needs should be anticipated. Search online: "Communication from the Commission on the Guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety or health of pregnant workers and workers who have recently given birth or are breastfeeding."  The Guidelines support the Commission of the European Communities 1992 Pregnant Workers Directive. Why the U.S. chose not to enhance the EC’s Pregnant Workers Directive but chose instead to create their own PWFA with complex rules still baffles me. The EC’s Pregnant Workers Directive and the U.S.’s Pregnant Workers Fairness Act seek the same broad objectives.

I encourage all stakeholders to support the PWFA.  The PWFA’s objectives are commendable and economically necessary for our nation.