Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators Risk Management podcast. Today, Lisa Brown with Thompson & Horton and Hillary Pettegrew with UE’s Risk Management Department will discuss new federal legal protections for pregnant and nursing employees. A reminder to our listeners that you can find other UE podcasts, as well as UE Risk Management resources, on our website, www.ue.org. Our podcasts are also available on Apple Podcasts and Spotify. Now, here’s Hillary. 

Hillary Pettegrew: Thank you, and welcome to our audience members. I’m Hillary Pettegrew, Senior Risk Management Counsel at United Educators, and I’m so pleased to welcome today's guest speaker, Lisa Brown, who's a partner with Thompson & Horton in Houston. This is a reunion of sorts for us, as Lisa and I worked together frequently years ago when I was in our Resolutions department, then known as the Claims department, and Lisa served as outside counsel for some of UE’s Texas members. She continues to do that work, and we’re delighted that she's now contributing her expertise to the risk management side of UE as well. Lisa, thanks for joining me today. Can you tell our audience a little bit about your professional background? 

Lisa Brown: Thank you, Hillary. Thompson & Horton is a Texas-based law firm that represents public schools, private schools, and institutions of higher education in Texas as well as other states. I have been an education lawyer for 32 years. A majority of my practice actually is higher education, but I also work with K-12 schools as well. 

I handle all facets of employment law and issues relating to students, such as Title IX, Title VI, the Clery Act, student discipline. One of my very first cases with the United Educators actually was a Title IX case more than 25 years ago, and today I am still litigating Title IX issues. 

Although I regularly defend schools in litigation, and also before federal agencies, a big part of my practice is working with school administrators on day-to-day problem solving and avoiding legal landmines through policy development and training, and so the new pregnancy and lactation laws that you and I will discuss today are a prime example of the prevention side of what we do. 

And even without these new laws, pregnancy discrimination lawsuits actually have been on the rise over the last five years, and new laws always can mean new sources of risk. Implementing these two new laws provides a really good opportunity for schools and universities to update their policies and make sure that they have strong systems in place to help supervisors follow the law. So, I really appreciate the opportunity to discuss these issues with you today. 

Pettegrew: Well, that is a good segue into taking a closer look at these new laws. So first is the Pregnant Workers Fairness Act, which we’ll sometimes refer to as the Fairness Act, or simply the Act. That applies to employers with at least 15 employees, and becomes effective June 27, 2023. 

Second, there’s the PUMP Act, which is short for the Providing Urgent Maternal Protections for Nursing Mothers Act. Although the PUMP Act became effective on its passage in December 2022, certain enforcement provisions and new monetary remedies take effect April 28, 2023. 

So, let’s start with the Pregnant Workers Fairness Act. Lisa, didn’t prior federal law already cover pregnancy discrimination? For example, the Americans with Disabilities Act (or ADA), the Family and Medical Leave Act (FMLA), and in particular, the Pregnancy Discrimination Act (the PDA), have been in effect for years. 

Brown: You’re correct. Current law does provide important protections, but there are gaps in coverage. A surprising number of common situations simply are not covered by the laws that you just mentioned. And let’s take the example of a healthy pregnant woman who needs more bathroom breaks, needs to sit more often than she stands, maybe needs a different desk because she doesn’t even fit behind her regular desk. 

A routine pregnancy is not a disability, and so the ADA does not apply. Although the ADA can apply to pregnancy-related disabilities such as gestational diabetes as an example, it does not apply to conditions or circumstances that fall short of constituting a disability. 

And the FMLA also doesn’t apply. The primary benefit of FMLA is 12 weeks of unpaid leave for certain conditions, and your job is protected. FMLA is frequently used for maternity leave, and these are absolutely valuable benefits, but 40% of American workers are not eligible for FMLA leave, and under the law, employees are eligible only if they have worked at least 1,250 hours for the school during the preceding 12 months. 

FMLA also does not address a situation in which a pregnant woman does not want time off. Maybe she wants to keep working but needs more bathroom breaks or a different desk. 

The Pregnancy Discrimination Act also has gaps in coverage. Many people are surprised to learn that it does not guarantee workplace accommodations for pregnant women. The PDA amended Title VII of the Civil Rights Act of 1964, which of course prohibits discrimination on the basis of sex and other categories as well. In 1976, the U.S. Supreme Court held that Title VII did not cover pregnancy discrimination, and Congress passed the PDA in 1978 to reverse that ruling. 

The Pregnancy Discrimination Act, it prohibits discrimination on the basis of pregnancy, childbirth, and also related medical conditions. It’s an important law and makes clear that you can’t fire someone or refuse to hire them because they’re pregnant or plan on becoming pregnant. 

The loophole in the PDA is that it does not impose an affirmative duty of accommodation, even if a pregnant woman has genuine physical limitations due to her pregnancy. The PDA is phrased in terms of equal treatment: treat pregnant women with a work limitation the way you would treat non-pregnant workers with a similar work limitation. So, say an employee within a broken arm receives light duty. Then a pregnant woman with a restriction on lifting also should receive light duty. 

The flip side to this is that if the employer does not accommodate non-pregnant employees with temporary disabilities, then it doesn’t have to accommodate pregnant employees either. And so courts really struggled with how to analyze whether a pregnant worker was comparable to a non-pregnant worker with a temporary disability. 

In 2015, the Supreme Court tried to clear this up, and the case was called Young vs. UPS, and it involved a pregnant UPS driver who had a lifting restriction but was forced to take unpaid leave. The Supreme Court devised a test that focused in part on whether the employer accommodated a large percentage of non-pregnant workers while failing to accommodate pregnant workers. And after this ruling, it was hard for pregnant women to identify comparator employees who were treated better. And for one thing, they didn’t have access to other employees’ disability records. One large scale study showed that more than two-thirds of pregnancy discrimination plaintiffs lost their cases, and mostly because they were unable to identify comparator employees. 

So back to your question: yes, there are federal laws that provide workplace protections for pregnant women, but they don't cover some fairly common accommodation situations. 

Pettegrew: Lisa, legislative proposals to create the Pregnant Workers Fairness Act have been introduced every year since 2012 and were never successful. Why do you think the legislation finally passed in December 2022? 

Brown: I think a number of factors influenced this action, and setting aside some of the political factors, there was a growing recognition that it is counterproductive to invest in an employee only to let them go due to temporary complications from a pregnancy. 

The data show that more women work while pregnant and are more likely to work later into their pregnancies than in years past. And while women in lower wage jobs and physically demanding jobs are more likely to file accommodation complaints, the issues impact women in all professions. And just as an example, with faculty, the childbearing years and tenure years typically are concurrent, leading to worries about discrimination if they stop the tenure clock or seek to temporarily reduce their courseloads or modify their duties. And scholars have noted a difference in tenure rates for women with children vs. men with children. 

But a big factor behind the legislation appears to be the Supreme Court ruling in Young vs. UPS, which we just discussed. During debate in the Senate, one of the bill’s sponsors referenced the study that showed that pregnant women were routinely losing their cases because of the Young standard, and he argued that pregnant workers should not have to identify some other person at work in order to get their own medically necessary accommodation. 

The final nail in the coffin for the Young case may have been an appeals court decision that came down in August of 2022. The Court of Appeals upheld a Walmart policy that provided light duty to employees who were injured on the job, but did not offer light duty to employees who were pregnant or who were injured outside of work. For example, one of the plaintiffs in that case presented a doctor’s note that had restricted her to an eight-hour workday, and Walmart refused her request, according to the case, and the Court of Appeals held that Walmart’s policy denial of accommodations did not violate the Pregnancy Discrimination Act. 

Pettegrew: What are the key requirements of the Fairness Act that you think our audience should be aware of? 

Brown: Well, a portion of the Act, a big portion, is modeled on the ADA, and schools and colleges will be required to make reasonable accommodations for known limitations related to an employee’s pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the school. 

The school and the employee will need to engage in an interactive process, just like the ADA, to determine a reasonable accommodation. And these terms, reasonable accommodation and undue hardship, have the same meaning that they have under the Americans with Disabilities Act. 

A critical difference between the ADA and the Fairness Act is that the new law applies to pregnancy-related limitations and conditions, regardless of whether those limitations and conditions constitute a disability under the ADA. 

Earlier I had described a scenario in which a pregnant woman might need more bathroom breaks or needs a different desk because she doesn’t fit behind her regular desk. These aren't disabilities under the Fairness Act, but they will need to be accommodated unless they present an undue hardship. 

An even more consequential difference between these two laws is that under the Fairness Act, a school may be required to provide a reasonable accommodation even if the employee is unable to perform an essential function of her job, and that is not the case under the ADA. So think about a school bus driver who can’t drive in the last month of pregnancy, a teacher's aide who can’t lift a child, or an athletic trainer who can’t bend, stoop, or lift. 

Under the Fairness Act, the school will need to look at three factors. First, whether the inability to perform an essential function is for a temporary period, which the Act doesn’t define. Second, whether the essential function could be performed in the near future, which the Act does not define. And then third, whether the inability to perform the essential function can be reasonably accommodated without undue hardship. And in contrast to that, the focus of the ADA is finding accommodations that will help the employee perform the essential functions of their job, not excuse those functions. 

Pettegrew: How do you think those differences between the ADA and the Fairness Act might play out? 

Brown: Well, I believe we will see more undue hardship assessments. Under the ADA, the undue hardship analysis, which will apply here, requires an individualized assessment of current circumstances that show a specific reasonable accommodation would cause significant difficulty or expense for the school. And the EEOC looks at a number of factors, such as the nature and cost of the accommodation and the overall financial resources, size, number of employees, and the type and location of facilities. Generally speaking, this may require looking beyond the campus or department where the pregnant employee currently works. 

Congress has directed the EEOC to provide regulations on these issues within a year of the law’s enactment. So until then, HR offices should be prepared to gather as much factual information as possible when evaluating whether the campus can accommodate an employee who can’t perform an essential job function and whether it’s an undue hardship. Is one essential function at issue or multiple essential functions? Do the job functions relate to safety or security? How does the campus cover other temporary situations when a person can’t perform an essential function? For example, what would the school do if the same employee had jury duty for a week? If HR rejects an accommodation request, it will need to do a really good job of documenting the reasons why the request was denied. 

Pettegrew: Lisa, do you think that, because the Fairness Act borrows the familiar interactive process under the ADA, its implementation may be simplified? 

Brown: Prior experience with the ADA’s interactive process, I think, will be helpful under the Fairness Act. We have familiar processes in place for an exchange of information between HR, the employee, and the employee’s doctor. Decisions are documented. We’re used to that. And the confidentiality of the process will remain the same, but we’re going to need to amend our forms and our form letters. The focus is not disability, but pregnancy-related limitations and conditions, which might include disability, and there will be challenges in how we document and analyze a request to eliminate an essential job function. 

Also, we have to keep in mind that some states have accommodation laws that actually provide greater benefits than what is required by the new Fairness Act; schools will need to evaluate their responsibilities under their state law and the new federal law. 

Pettegrew: Lisa, do you see any particular open questions or implementation challenges under the Fairness Act? 

Brown: One significant question is whether it will require accommodating a request for time off for abortion-related travel or recovery from an abortion. The Act requires reasonable accommodations for pregnancy, childbirth, or “related medical conditions.” So the question is, what is a related condition? 

The same phrase actually appears in the Pregnancy Discrimination Act, and various courts and the EEOC have long defined this phrase — related medical condition — to include abortion. Abortion also is addressed under current Title IX regulations, which expressly reference termination of pregnancy. Some senators have stated that the Fairness Act doesn’t cover abortion, and there also is a question about how religious exemptions or objections will work. Ultimately, I think abortion related questions under the Fairness Act will be litigated. 

Pettegrew: Thank you, Lisa. That was a lot of information to unpack. Let’s switch gears now from pregnancy accommodations to breastfeeding accommodations. Whereas the Fairness Act is a brand new law, the PUMP Act expanded an existing requirement of the Fair Labor Standards Act (or FLSA) that employers have to provide appropriate breaks for nursing mothers to express milk. But until now, that requirement only applied to non-exempt, or generally, hourly employees. 

The PUMP Act fills an important gap by extending this break requirement to exempt employees. So now, as a rule, both hourly and salaried employees are specifically protected and thus legally entitled to breaks so they can express milk while at work. However, employers with fewer than 50 employees don’t have to comply with the requirement if it would be an undue hardship. Lisa, what are the essential components of the PUMP Act? 

Brown: Well, the core requirement is that employees have a reasonable break to express breast milk in a place that is private and protected from intrusion, and the private place cannot be a bathroom, and this entitlement applies for one year after the child’s birth. The room does not have to be dedicated to lactation, but it needs to be available when the employee needs to pump. 

An important question is, well, what’s reasonable? And I want to give an example. In February 2023, the Department of Labor found that a company violated the prior version of this law by forcing nursing mothers to wait up to 20 minutes for an available room. The company’s facility was large, and 19 nursing mothers had to share four one-person lactation rooms. 

So I think schools need to think practically about this law. First, although there is no requirement to have a permanent location in each campus building, rooms must be reasonably available without undue delay. So it’s prudent for facilities managers to evaluate campus facilities ahead of time and identify spaces that could be used for lactation. The space must be functional. It should provide a place for the nursing mother to sit down while pumping. Let’s not scramble at the last minute. 

Second, if permanent rooms can be designated, they should be identified on your website. If they can’t be designated or they aren’t designated, then the website should identify which campus office is responsible for making arrangements for a lactation space. 

When evaluating whether break time is reasonable, consider how long it’d take to get to the break area, and how long will it take the employee to set up, pump, and return to work? Requiring an employee to pump in a nearby building could, under some circumstances, I think, result in an insufficient or unreasonable break. 

Another factor, a lactation space does not need to be a one-person room. But facilities that accommodate multiple women should provide a means for each woman to pump privately and without intrusion. Privacy screens or drapes, like at a doctor’s office, could be used. 

The need for space may come and go, depending on the number of nursing mothers in a given semester, so provide training to all supervisors so that they are not caught off guard by an unexpected request by an employee who works in a building without a lactation space. An unprepared supervisor might say something inappropriate or cause the nursing mother to experience delay in pumping. Provide information on your website so that supervisors also will know who to call to quickly identify and reserve a proper lactation space. 

And finally, some states have lactation laws that provide greater benefits than the PUMP Act. Once again, schools will need to evaluate their responsibilities under their state’s law as well as the new PUMP Act. 

Pettegrew: What remedies does an employee of a K-12 school or a higher education institution have for violations of either the Pregnant Workers Fairness Act or the PUMP Act? 

Brown: Well, under the Fairness Act, damages and remedies are the same as they are under Title VII, and that can include monetary damages. The EEOC will enforce this law, so employees will need to file an EEOC charge before they file a lawsuit in court. And then, under the PUMP Act, monetary damages will also be available. However, before filing a lawsuit, the employee must give 10 days’ notice to the employer that an adequate lactation space has not been provided, and the employer generally will have an opportunity to take corrective action. 

Pettegrew: Lisa, do you have any takeaway messages for the audience about these two new mandates? 

Brown: Well above all, every institution needs to update their policies. Although the pregnancy accommodation process will be similar to the ADA interactive process, there are differences, and I suggest working with your legal counsel to create a separate pregnancy and lactation policy. 

Another thing: Update your job descriptions. This is critical under the Fairness Act and the ADA as well. It’s hard to determine accommodations when the supervisor and employee don’t even agree on the job duties. And I know schools hear this a lot, but training really is essential. Most pregnancy-related complaints are based on what a frontline supervisor said or did, so we need to train them.  

And finally, the Fairness Act is effective on June 27, 2023, so the policy updates and training really should occur now. 

Pettegrew: There’s a lot here to digest, Lisa, and I really appreciate you helping us to understand these new requirements. As we wrap up today, Lisa and I would just like to remind our audience that in addition to complying with these new laws, most K-12 schools and higher education institutions have obligations under Title IX, which, of course, applies to both students and employees. 

The Title IX regulations that became effective in 2020 do cover pregnancy discrimination, breastfeeding, and parental status. UE will separately address final changes the Department of Education makes to the Title IX regulations, and we do anticipate that additional policy changes and training will be necessary for compliance. That concludes our program today. Thanks to everyone for listening, and Lisa, thank you very much for joining me. 

Host: From United Educators insurance, this is the Prevention and Protection podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.