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Welcome to the NextGen Work Culture podcast, where leaders learn to support working parents, because being a family friendly business isn't just a nice to have anymore. It's essential for businesses that want to stay competitive, and it is critical for the next generation and those who are raising them. I'm your host, Courtney Ross, and I am so glad that you're here. Welcome to the NextGen Work Culture podcast. Today I'm here with Vienna Braun and Vianney. Thank you so much for coming on the podcast today to talk about the PWFA.

Vianei

Thank you for having me, Courtney. I appreciate it.

Kortney

Before we dive into this law, will you tell us a little bit more about you, who you are, and what you do?

Vianei

Yes. My name is Vienna Braun, and I am a shareholder at Decker Jones PC, which is a full service law firm in Fort Worth, Texas. And I head up the employment law group here. I've been doing pretty much nothing but employment law for employers for more than 30 years now. But my dad is a plaintiff's attorney in employment law, so he's on the other side of the docket. And I like to think that growing up in his law firm gave me a good perspective. I try really hard to not only see things from the employer's perspective, I try to see it from the employees as well, even though I don't actually represent employees in litigation. So you can call me out, Courtney, if you think I'm being one sided, but I will try very hard to be even handed here.

Kortney

Okay, that sounds great. No, it's wonderful to hear your perspective for the employer's side of things, too, though, because I know we may have a lot of managers or leaders and businesses listening, and they kind of need to know, like, what's gonna happen if they end up in litigation for these things. Right. I. And hopefully how they can avoid it, how they could avoid having to be your client however they can.

Vianei

You know, that's my entire goal, is to keep us out of the courthouse. There's plenty of employment law compliance work to go around. I would much prefer that we not end up in depositions and in front of a jury. It's just not a fun way to spend your day. So that's really the crux of my practice.

Kortney

Yeah, absolutely. So, we're here to talk about the pregnant Workers Fairness act. First, can you just tell us a little bit, kind of an overview of that law? What is it?

Vianei

Absolutely. The pregnant Workers Fairness act is fairly new. It went into effect last June. And, you know, in these highly politicized times, it actually was a very non controversial piece of legislation, and I think if I take a step back, it'll show why it was non controversial. Before the PWFA, of course, there are a bunch of employment laws out there, but they were leaving a gap. So let's talk about Title VII, which everybody's familiar with. That's where you get your non discrimination, race, sex, religion, national origin, that sort of thing. And it does have pregnancy discrimination aspects to it.

Vianei

But under Title VII alone, let's say you have a pregnant worker with a lifting restriction, and that worker routinely lifts 40 plus pounds on some kind of delivery line, and during her pregnancy there's a ten pound lifting restriction. Title VII doesn't really help with that because title seven just says, don't discriminate against that person. And so if that line has 40 pound packages and she can't lift, Title VII is just going to say, well, too bad, you know, maybe you have to go on leave. We do have the family and Medical Leave act. So in that example, if the employer has 50 or more employees within a 75 miles radius, and that worker has worked at least a year and has at least 1250 hours of work in that past twelve months, so as to qualify under the FMLA, maybe that worker gets job protection during the twelve weeks of unpaid leave. But that's still not a really great solution. You also have the ADA, which says you're going to accommodate disabled employees, but pregnancy is not considered a disability in most cases because it's not a permanent condition to say that it's affecting a major life activity to qualify you under the ADA. So there was really this gap where it's not really fair for that worker who's pregnant and will eventually be able to come back and work that 40 pound lifting line to not have some way to stay at work and continue earning a living and supporting the family.

Vianei

So that was the gap that the PWFA is seeking to fill. And if you read the actual law, it's structured actually very elegantly, it's structured to match Title VII in terms of who's covered. So the very, very tiny employers out there don't have to comply with this because it kicks in at 15 or more employees. So that is congruent with Title VII. And then in terms of accommodations, it's concurrent with the ADA. So you have this idea of accommodating this worker unless it presents an undue hardship to the organization. And all of those are going to be analyzed very similarly to the ADA. So that's the PWFA.

Vianei

In a nutshell.

Kortney

Yeah. And it was a very uncontroversial, pretty well supported law because there was such a gap in the workplace or in the laws to protect workers. And I think it is going to do a really great job of kind of filling in that gap. There's just a lot of intricacies we need to figure out along the way.

Vianei

Right, exactly. And so to the extent that some people are out there saying, well, wait, I thought there was a controversy. Where it got controversial was more recently the law itself, as most of these employment laws do, instructed a federal agency to create regulations, and in this case, that's the Equal Employment Opportunity Commission, which was tasked with coming up with the regulations to really flesh out what the PWFA is going to look like. And those regulations came out in April of this year, and they're actually, as we sit here today, we're in June, and they're not quite effective. They go into effect June 18 of 2024, and the regs took the protection a step further. The law says that we're going to accommodate known limitations due to pregnancy, childbirth, or related medical conditions. And I think most of the lawmakers sitting there when they thought related medical conditions were probably thinking of things like gestational diabetes, high blood pressure, you know, these various things that unfortunately may go along with, with pregnancy for some people. Well, the EEOC took the, that related medical condition and included abortion care as part of the definition.

Vianei

That has been very controversial and in fact, is the subject of a lawsuit. 17 states banded together and filed a lawsuit against that aspect of the rules. And so as we sit here today, I have some doubts as to whether that piece is gonna survive judicial scrutiny. But let's just set that to the side, because as a practical matter, what's really important about this law is the nitty gritty of keeping pregnant workers at work while they're able to work with some kind of accommodation. So hopefully, we can focus on that, which is, I think, the interesting part.

Kortney

Yeah. And that's really what it was created for. Right. Is keeping pregnant employees in the workplace for as long as possible. So we'll focus on the pregnancy part of things today. But those are those new rags, and it's all kind of up in the air right now, but it does include a lot of other related conditions, basically related to being a female. There was a lot of things kind of included in there, but we'll set that aside and focus on pregnancy for right now. So we mentioned that this is similar to the ADA.

Kortney

How is it similar or different from.

Vianei

The ADA, great question, because that's where HR people are going to have to kind of adjust their thinking a little bit. All of us used to dealing with the ADA have this sort of mantra like, okay, what are the essential functions of the position? Because in order to step forward and say, oh, I need to accommodate this person. Well, I still need to know that they can perform the essential functions of the position once I do accommodate them. That's the big change with the PWFA. The law contemplates that perhaps during pregnancy or due to childbirth, for some temporary period of time, a worker may not be able to perform one or more essential functions of the job, and that does not disqualify them from PWFA accommodation rights. And I guess that makes sense because this is all temporary. Nobody's pregnant forever. Nobody's suffering from childbirth related conditions forever.

Vianei

And so what the regulations say is that if the person cannot perform an essential function right now, but the barrier is temporary, and they will be able to return to performing the essential function in the near future, then they are still protected. And the regs went a step further in the near future, they defined as generally 40 weeks, which would be the term of a pregnancy. It also contemplates that you might have more than one of these situations. You can envision, for example, you might have a high risk pregnancy where someone is given a lifting restriction during the pregnancy. Then during childbirth, it turns out to be a C section, and there's a lifting restriction that then continues past when the person comes back to work. So that's, I think, what got the attention of a lot of HR directors, because when you think about what the law says, it all makes perfect sense, and it's all a good thing. But there is going to be a challenge. Let's go back to the same example.

Vianei

You've got someone who, okay, is on this 40 pound lifting line. Then perhaps they're given light duty, or perhaps they're put on an easier line because of their ten pound lifting restriction. Well, 40 weeks is a long time. And then what if they have a lifting restriction after childbirth, too? I think HR directors are going to have a little bit of a challenge with coworkers in certain workplaces where coworkers are like, well, that's just not fair. Why does this person get an easier path than I do? So I think those are going to be some of the challenges, just the interpersonal management of these issues. And I think HR directors are going to have to really focus on staying upbeat, positive. This is a good thing. We want to be there for our pregnant workers, and we're going to find a way to make this work.

Kortney

Yeah, absolutely. I think that a lot of the issues may come from tension between employees or people thinking, well, that's not fair. She gets almost a year of easier work and then gets to just come back to her position. And so there is going to be a lot to kind of weed through and figure out there and navigate, as you do these accommodations for individual employees.

Vianei

Exactly.

Kortney

So some of the regulate, or when the regulations came out, there were predictable assessments. So specific things that you pretty much always have to say yes to. Right. First, can you tell us what were those and how should they be handled?

Vianei

Yeah, and it's interesting to me, predictable assessment doesn't sound like the right phrase, but that's exactly what the law and the regs call them. And these are the basics thing, saying that, okay, if somebody's pregnant and they're working, then regardless of what the rules are like, you know, it may be a bank teller where you're not supposed to have a beverage with you there on the teller line. Well, that's one of the predictable assessments. If somebody needs to be carrying water with them, that should be automatic. If typically they're standing at that teller line, but this particular pregnant worker would prefer to be sitting. That's a predictable assessment. That should be an automatic yes. They should be able to take more frequent breaks if necessary, whether that's for the restroom to sit down, get a drink, to have something to eat.

Vianei

Those are the predictable assessment items. And the law and the regs definitely contemplate that employers, especially the large ones, are going to train supervisors who, you know, are not HR professionals, just the folks that are on the front line that maybe have two or three folks reporting to them, those supervisors should understand that if someone says, hey, look, you know, I really need to have water up here, even though that's against our typical rule, that's an automatic yes. And there is actually verbiage in the EEOC reg saying there should not be a delay because somebody asked the quote unquote wrong supervisor for an accommodation. Those should be pretty much automatic. And then the regs in general contemplate that other requests would also be processed pretty darn quickly. I think the EEOC reading between the lines, I think they were sort of concerned that someone would make a request and the supervisor would say, oh, well, let me send it to HR, and then like, weeks pass and this person's not being helped. And so the regs are pretty direct about, we expect employers to deal with these requests promptly.

Kortney

Yeah. And that differs from the ADA a bit, because a lot of HR people are having you fill out a form or go through an external provider sometimes to figure out those ADA requests for accommodation. And this law kind of specifically says, like, you need to work faster than that. You need to, you know, make it as quick and easy as possible for them to get these accommodations because pregnancy doesn't last forever. Right. And things change quickly, and they may need those accommodations to stay in the workforce. So they do expect that it happens very quickly. And that could be, from my understanding, as easy as just talking to your manager and saying, hey, I need to be able to use the restroom more frequently, and the manager needs to know that they have to say, okay, yes, exactly.

Vianei

And, yeah, even the gap between the law and the regulations, because, you know, the law has been in effect since last June. And so employers were putting policies in their handbooks, and some of those policies now need to be revised. I've definitely seen some policies cross my desk from that first wave of policy adoption where it said, okay, you need to notify us in writing. And clearly under the regs, that's, you can't maintain that just talking to your supervisor is sufficient. The regs suggest that documentation should be kept to a minimum. So if someone says, hey, I'm pregnant, and my doctor suggested that I should, you know, request a parking space closer to the entrance and not have to walk a long distance from the regular lot that I park in, you know, I expect getting some pushback from some employer saying, well, this is early on. How do I even know the employee's pregnant? And I'm going to be advising, don't go requesting sonograms. Just take that oral report as self confirmation, which is a term used in the regulations.

Vianei

And again, these are temporary things, so it really isn't appropriate to be as precise as we typically have been under the ADA. And then you mentioned these third party providers. I think that's going to be a challenge, too, where I've got employers who use unum, for example, and so, oh, it's an accommodation request. Let's kick it out to unum. Let them work their magic. And this really isn't supposed to take that kind of cumbersome time. So different HR departments are going to have to think through how are we going to be responsive to these and not burden them with a bunch of process.

Kortney

Yeah, yeah. And a lot of that is going to have to be kind of empowering the frontline managers to be able to make some decisions as well, without having to send everything through HR, which I think is sort of scary for some HR people. But if we could.

Vianei

Exactly. Well, and it could get a little wild out there because you asked about differences. Another difference is it doesn't have to be the employee. It says, you know, known limitation through notification by the employer or the employer's representative. And that's defined super broadly by EEOC. So it could be, you might hear from somebody's boyfriend or, I mean, could be a union rep, but probably not. It could just be a family member, could be a co worker. And so all of that is contemplated.

Vianei

And that's different because we certainly wouldn't. If a coworker said, oh, I think so, and so is struggling because of their fibromyalgia. You need to go accommodate them. Typically, we'd just say, we'll tell them to come to HR, fill out our ADA request form, and this is going to be very different. If that coworker says, hey, you know, I think the teller next to me is pregnant and really needs more breaks, that triggers PWFA rights.

Kortney

Yeah, and that's very different than what we're used to. So it's something that everyone's just going to have to learn and it fuse into their operations and figure out how to put that in policy into action. So what are a few examples of PWFA issues, like some maybe accommodation examples?

Vianei

Well, if you go through, and by the way, I should have mentioned, anybody who wants to do a deep dive, go to EEOC dot Gov. And there are links to the law itself and to the regulations which then segue into this long enforcement guidance that gives various examples. And, yeah, this could come up in a number of different ways. In fact, before diving into this, I don't think I knew that pregnancy could exacerbate carpal tunnel syndrome. So one of the examples in the regs talks about retail associate, like in a clothing store whose job is typically, you know, greeting customers and helping customers, but also a big aspect would be folding clothes and putting them back. And the example says, due to carpal tunnel, due to pregnancy, this person can't fold effectively. And so that example goes on to say then, you know, for the period of time that that's an issue that associate should be tasked with being near the front of the store greeting folks, and, you know, if they're able to assist folks with getting close to a fitting room, but should be relieved of that folding essential function. So that's one example that's straight from the regs.

Kortney

Yeah, and I think that also kind of calls attention to somebody may be having issues as a pregnant employee that you don't know is related to pregnancy. Right. Like, we all kind of think of needing to park closer, needing to avoid stairs or having morning sickness, but there's so many things that could be related to pregnancy or exasperate or exacerbated by pregnancy, and we kind of have to take the employee, you know, at face value a little bit. If they say, like, hey, I'm having this problem and it is because of pregnancy, like, don't discard it just because it sounds a little bit off the wall, like carpal tunnel. Doesn't sound like it would be exacerbated by pregnancy, but it definitely is. I actually have experienced that myself. I was classically trained flute player, and so I've had to, you know, be careful with my wrists at carpal tunnel. And when I got pregnant, I really realized, recognized the difference and had to be very careful of it.

Vianei

So, yeah, that's an interesting example. And culturally, this is going to be fascinating to see how it shakes out. I feel like historically, well, and especially I come up, you know, in the legal profession, and I started with a very, very large law firm wherever, especially a few decades ago. I mean, of course, you can't hide a pregnancy, but the female lawyers who were pregnant were just a really tough bunch, you know, and they went out of their way to say, hey, I've got it covered. Nothing has changed, and it'll be interesting to see. I think there's still going to be a large cohort of women who are hesitant to ask for the help that they're entitled to. So that's one piece of it, too. As policies roll out and as training rolls out, I think a conscientious employer would want pregnant workers to feel like, hey, they're supported and they have access.

Vianei

But then inevitably, in our world, there's going to be the other side of it where some people may be exaggerating symptoms that they're having, and HR is going to have to tread carefully. I think, under the PWFA, they're probably going to have to take folks word for it. You know, even if they kind of think, well, I think this worker could be doing more and they're just trying to get out of certain tasks. I think they're just going to have to, you know, work through it very carefully. That's not to say employers can't question, but the entire vibe, if that's a good way of describing regulations, the vibe of the regulations is, hey, take people's word for it, and, you know, this isn't going to last forever. Let's support them during this time, and then you can get everybody back to all of their essential functions once this time has passed.

Kortney

Yeah. And that's not to say that you can't require any documentation at all in some cases, right. When it's obvious you shouldn't, and it should be quick. But there are some cases where you can ask them to bring in a doctor's note or something.

Vianei

Well, especially, you know, I think you can always characterize it in the positive, like, hey, we want to make sure that we're abiding by the letter of your doctor's restrictions. So please get us a letter so that nobody misinterprets a 15 pound lifting restriction as 50. You know, I mean, you actually want that in black and white. So Hr, absolutely, when you're talking about specifics like that, can request reasonable documentation, but you aren't going to get the same kind of recertification type stuff that you get under the FMLA. I think it really contemplates, okay, just tell us once and then we're accommodating. And then if you need a different accommodation, talk to us again. But I don't think you're going to see anything equivalent to the recertification that you see under the FMLA.

Kortney

Yeah, and we have the issue of, like, intermittent problems as well, like migraines or morning sickness or something that may only be happening intermittently where you can only require the doctor to say, this is happening once. You don't need proof of it every time they come in with a headache or something.

Vianei

Yeah. And, you know, some of those are going to depend on the workplace because migraines are a good example. That's something else that can be exacerbated. And I wish you could do a one size fits all for this, but you can't because jobs are so different, because there is still that caveat saying the employer has to accommodate unless there's an undue hardship. And when you analyze undue hardship, you're looking at the nature of what the accommodation is, what the cost is, what the resources of the employer are, and just the effect on operations and the effect on coworkers as well. And so I can envision an example where, okay, if somebody really can't predict, I mean, pregnancy has exacerbated their migraines on any given morning, I mean, they might be like, okay, I'm gonna have to just close all the shutters and stay home. I can't go to work. Well, depending on the nature of the job, that really may be a situation where they say, okay, we're going to have to put you on leave, which is not the preferred accommodation under the PWFA.

Vianei

But if that's someone who needs to get in there because they're driving an ambulance, well, we need to know, you know, are you going to be able to maintain consistent attendance or not? So there are situations where maybe leave is the appropriate answer. But the PWFA definitely contemplates that you're having this interactive discussion and that you don't just have employers knee jerking saying, oh, you're pregnant, okay, go home and we'll see you after you deliver and recover. Leave is not the default and it shouldn't be.

Kortney

Yeah, the law kind of implies that it should be like the last resort almost, right. If nothing else is working, you really truly can't accommodate this employee and the, the workplace. Then maybe we could consider leave.

Vianei

Yeah. Or of course, if that's what the employee wants. So that goes a long way too. In my day to day practice, I'm always asking that question like, well, what does the employee want? Because, yeah, you're not going to end up in a legal dispute if you've documented that. Okay. We met and we asked, you know, what's your preferred accommodation? They said, well, I'd really like to drop to part time or I'd really like to go on leave. As long as we're all on the same page, there's not going to be a dispute.

Kortney

Yeah, yeah. That's important to point out. So the regulations, by the time this episode airs, the regulations will be in place. The law has been in place for over a year about. So what should employers be doing right now?

Vianei

Employers hopefully have already done some things, but there may be some people listening to the podcast who have been in denial. So if you've been in denial, then you need to go to the EEOC website. There is a poster. Make sure you've got the appropriate poster. You know, some people still post in break rooms. Others, you know, have some electronic dissemination. But yes, you're supposed to tell your employees what, what their rights are and update those policies. In most of the handbooks I've been working on, it doesn't seem to fit seamlessly.

Vianei

I think the best practice is to have a separate PWFA policy, which then tracks some of this language in the regulations and sets out that absolutely the employer is going to accommodate. And maybe you even list out the predictable assessment so folks know that, okay, that shouldn't even need to go to HR. I just tell my, my supervisor that, hey, I can't stand, I need a stool here at my workstation. And that's that. And so the policy also training, however employers do their periodic training, I think this should be part of it. So again, so those supervisors know because it's not really an HR topic. I mean, it is, but it's beyond that where the frontline supervisors really need to know about this and need to be ready to accommodate pregnant workers that report to them. And I do think also just culturally, employers should be approaching this as a good thing.

Vianei

I mean, obviously we don't want EEOC charges, we don't want to get sued, but beyond that, we want to support our workers who are pregnant. I think it's continuing to be an issue recruiting and retaining good talent, and that's a great reputation for an employer to have. If young female workers know, hey, if I choose to start a family, this is a place where they will support me. So I think employers need to keep it positive that we're going to do this because it's the right thing to do. It's good for our workers and it's good for our reputation. And so with that positive mindset, just thinking, okay, you know, how do we make this work for everybody? I think that's going to go a long way in keeping things on an even keel and preventing disputes under the law. We don't have any data yet. The EEOC, I'm sure, has gotten charges already on the PWFA, but we haven't had a full fiscal year cycle, so we don't know the quantity of those charges.

Vianei

But it's certainly a lot easier to accommodate someone, keep them happy, make sure that the workplace is supportive rather than ending up with an EEOC charge and talking to a lawyer. I think I'm pleasant, but typically folks don't really want to pick up the phone and talk to me because that means there's a problem. So hopefully some attention to this on the front end will keep employers out of trouble.

Kortney

Yeah, and hopefully if they do have to call you, it's just to help with their handbooks or something before they're going to the courtroom. Right. Because we want to stay out of courtrooms if we can. So I certainly think that the leadership training portion is super important as well. That's actually kind of what I'm focused on right now is helping employers get their frontline managers trained on this so that they understand what they have to do as a part of this law that they even know the law exists? Cause a lot of people that I talked to have never even heard of it. Hr, of course, knows about it, but they need to make sure that everyone kind of knows about it. So anyone who's interested in learning more about that manager training that I offer could go to kortneyross.com leadershiptraining. And if they want to learn more about you VNA, where can they find you?

Vianei

Www.deckerjones.com thank you for asking.

Kortney

All right, absolutely. Well, thank you so much. This has been a very insightful conversation. I hope that it's helpful for people who are listening. And, you know, maybe we'll do it again soon once we know more about the, the litigation and everything and after this law has been out for a while and maybe we do have some more stats and stuff about it to share.

Vianei

Exactly. Well, thank you for having me.

Thank you. If you enjoyed this episode, I know you'll love the future ready work culture framework. Head over to kortneyross.com framework to download your copy and start building a family friendly, future ready workplace today. Don't forget to subscribe to the next gen work culture so you never miss an episode. I'd love it if you'd also take a moment to leave a review. Until next time, take care.