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On Pregnancy Accommodation
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On Pregnancy Accommodation

With Kameron Dawson, Senior Staff Attorney, A Better Balance | Interviewed by Matt Crossman

Listen on Apple Podcasts, Spotify and YouTube.

Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about the federal Pregnant Workers Fairness Act and other pregnancy accommodation laws. Our guest is Kameron Dawson, Senior Staff Attorney at A Better Balance, a legal advocacy organization.

A Better Balance produced a report called Long Overdue, which lays out the growing number of states that have passed pregnancy accommodations laws, many of them with bipartisan support and some unanimously.

The laws require companies to make reasonable accommodations, which Dawson says means “a medically necessary workplace change so that a worker can continue to do their job functions.”

That can mean allowing a worker to have access to water or setting aside a time and place for women to pump breast milk. Dawson lays out the complicated web of factors involved in getting this right: There are safety, privacy and bias issues to consider when an employee is pregnant. 

Listen on Apple Podcasts, Spotify and YouTube.


Interview References:


TRANSCRIPT

I. THE BREADTH AND DEPTH OF NEW PREGNANCY ACCOMMODATION LAWS

Matt Crossman, Host: We’re going to talk about pregnancy accommodation laws, but first I want to set the stage with a little bit of background on you. You are a Senior Staff Attorney for A Better Balance. What is A Better Balance and what do you do for them?

Kameron Dawson: A Better Balance is a legal advocacy organization. Our main mission is to use the power of the law through direct services, policy advocacy and community outreach, as well as impact litigation, to advance justice for workers so they don’t have to choose between caring for themselves and their loved ones and jeopardizing their economic security. 

We have an expert legal team at our national organization where we combat discrimination against pregnant workers and caregivers. We also advance supportive work family policies like pregnancy accommodations or paid sick time and paid family and medical leave for caregivers and other workers who have family caregiving responsibilities.

In order to help support mothers and caregivers in America, we also run a free and confidential legal helpline so that workers can understand and assert their rights in the workplace. We talk with workers one on one and engage them in extensive outreach and advocacy efforts to make sure that some of those hard fought protections we win are meaningfully enforced over the long run.

As a senior staff attorney, I’m based here in Nashville, Tennessee, focusing on advancing federal, state and local legislation that will support those working families. And I also provide technical assistance and some supportive legal policy reports for legislators and the public so they can clearly understand why these issues are so important for our economy, our businesses and also the people that are working there.

I also represent workers and enforce some of the rights we’ll talk about today.

MC: Let’s start with what the state of laws is now. The federal Pregnant Workers Fairness Act went into effect in June. What does the PWFA cover?

KD: It covers the private sector and the public sector. So businesses that have 15 or more employees, plus Congress, federal agencies, as well as some labor organizations. And what that law says is employees and applicants who have known limitations related to their pregnancy, childbirth or other related medical conditions like lactation may request and receive reasonable accommodations unless it would pose an undue hardship on their employer’s business. 

Although not all pregnant or postpartum workers may need accommodations, this law provides explicit and timely protections so that a worker does not have to choose between having or maintaining a healthy pregnancy and being temporarily put on leave too early or losing their job and facing discrimination.

This was a transcending law in the gender and racial justice spectrum. This was an amendment to Title VII law, which we haven’t seen for many decades. But it includes important protections against retaliation for needing, requesting or using an accommodation, and it also requires that an employee is not forced to accept an accommodation they do not need.

We’re very excited to see this new federal law in place to help some pregnant and nursing workers really be protected while they are taking care of their health.

MC: From my reading, the PWFA seems like an expansion of what’s covered by other laws, such as the ADA, the PDA, and the Family Medical Leave Act. Is that true?

KD: The existing federal framework was a patchwork of laws. And so the PWFA is really filling in gaps where many millions of workers were not covered. We have laws like the Pregnancy Discrimination Act, which was passed in 1978, that work to really protect working women from discrimination and harassment.

That law, and the Americans with Disabilities Act, which also protects workers with disabilities against discrimination, still exist. This Pregnant Workers Fairness Act doesn’t prevent or preempt those laws. 

At A Better Balance we have seen that many workers who were facing discrimination were also facing a lack of accommodations in the workplace. Not the overt acts of firing a pregnant worker or discriminating against a pregnant worker. Instead they simply were being told that they could not have a lifting restriction at their job, or they could not have access to a water bottle because other employees did not need those same accommodations, or there was no light-duty position available at the job.

And so the Pregnant Workers’ Fairness Act really does blend in with those other laws to provide stronger protections. And we’ve seen under our different reports like Long Overdue, which analyzed legal cases from across the country, that since Young versus UPS, the Supreme Court had set a new legal standard for trying to evaluate pregnancy accommodation cases under the Pregnancy Discrimination Act.

And there was a balancing test that many cases were getting wrong where a worker had to make a claim that her company intentionally treated her differently due to her pregnancy, then they had to show that worker sought out an accommodation, the company refused, and then granted accommodations to others who were suffering from similar restrictions.

And then lastly, the company had to try to show that those reasons were legitimate. And this was an overburdening standard for many pregnant workers. Our report Long Overdue found that two-thirds of pregnant women were losing their cases and their requests for accommodations based on a variety of reasons.

MC: You mentioned that Better Balance produced a report called Long Overdue. One of the sections in that report that I found really interesting was the history of passage of legislation similar to the PWFA at state level in recent years. Virtually all of them passed with bipartisan support and many were either unanimous or nearly so.

How many states have them now and what happened that there was so much momentum on this issue in the last few years?

KD: We are super proud at A Better Balance for the momentum that the state work led in passing the federal PWFA, and currently there are 30 states with their own version of the Pregnant Workers Fairness Act that provides accommodations to pregnant and nursing workers. This was a long-time effort.

As you mentioned, many were passed with unanimous support and bipartisan support, and it really couldn’t have been done without a diverse coalition of state-based partners from the maternal health space, the business space, as well as worker rights organizations. And we tried to uplift and center the experiences of pregnant workers and working moms so that legislators could hear directly from them as they’re demanding respect and dignity under the law in committee hearings. We really could have those trusted conversations and relationships with legislators on both sides of the aisle and they soon realized that there is a health, economic, and business benefit to providing these reasonable accommodations to pregnant workers. We’re talking about increasing women’s labor participation, by increasing the well being and health of families. 

II. REASONABLE ACCOMMODATIONS: WHAT A COMPANY SHOULD DO WHEN AN EMPLOYEE SAYS SHE’S PREGNANT

MC: Communication seems hugely important here. It’s a two-way street. The employee has to let the employer know she’s pregnant and needs accommodations related to either the pregnancy or the childbirth.

And if I understand correctly, that’s what sets everything else in motion. You can’t accommodate what you don’t know. I would think the very first thing a company should do is have a procedure governing what happens after an employee tells her boss that she’s expecting. What is an employer’s responsibility under the law? And what have you seen in practice?

KD: This is a great question. and I want to say that all of these federal laws, the FMLA, the ADA, the PDA and other Title VII laws have a notice requirement. As employees are communicating about their needs, they may not need to use magic words citing directly to the law. 

But if an employer notices in conversations that an employee may be suffering from a mental or physical condition in their pregnancy, that does kickstart the process of an employer beginning that interactive process. With that conversation they are effectively on notice and they need to let their employees know what legal rights they may have to either accommodations under the Pregnant Workers Fairness Act or if they’re returning from pregnancy and need more time to pump in the workplace, what their rights may be under the Pump act or the PWFA. 

What I have seen in practice through our helpline is that some companies may have provided packets to their pregnant employees that contain information on short term disability and FMLA in the past, but I think it’s also important now that we have these new laws in place that HR also notify their employees of the Pregnant Workers Fairness Act and tell them about the process for requesting accommodations in case they may need those accommodations before, during or after their pregnancy because many pregnant workers want to keep working up until their delivery date. Unpaid leave is not an option for them and their family as they’re the primary or the co-bread winners of their family.

It is good that employers are educating their employees about medical leave, but I think now our landscape is changing and they need to know, if there is a worker who is pregnant, what’s the process for talking about their accommodations or seeing what’s a reasonable accommodation that they can take so they can keep working.

MC: How do the laws define reasonable accommodations?

KD: Under the Pregnant Workers Fairness Act, a reasonable accommodation is a medically necessary workplace change so that a worker can continue to do their job functions. 

In the EEOC’s proposed rules, what we’ve seen is a list of possible options, but it’s not a limiting list, so it really does depend on the medical needs of that pregnant worker. It could be things like allowing additional rest or bathroom breaks, giving time off to attend prenatal or postnatal appointments, providing access to a water bottle or additional snacks so that they can keep their blood sugar up or stay hydrated.

And we talk about things like access to a chair or a modified schedule. And one of the main things we’ve seen is really highlighting the need for space and time to pump breast milk at work once they return to the workplace after maternity leave. We’re also seeing an increase in the occurrence of things like postpartum depression, anxiety, mastitis and other conditions.

Having that time off to recover is really one of those types of reasonable accommodations that the EEOC lists out. Telework and more are just a few other examples that we’ve seen. 

It does depend on the undue hardship exception. If an employee requests a reasonable accommodation, an employer then needs to look at the size of their job, the facilities they have and the resources they have to weigh out, is this going to be too expensive or too difficult to implement?

And they cannot just say no to that request. They have to try to provide an alternative, reasonable accommodation.

III. ON BENEVOLENT ATTEMPTS TO BE HELPFUL, OVERDOING IT AND PRIVACY

MC: Where’s the line between knowing about a pregnancy, being asked to provide an accommodation, and offering to provide accommodations without being asked specifically? How proactive does a company need to be in order to be abiding by the law?

KD: Some businesses are already promoting that they provide reasonable accommodations in their workplace and have flexible scheduling for their employees. 

Where we’ve seen some businesses cross the line and maybe get into some legal trouble is when, even though it may be benevolent, there are issues of having bias against pregnant workers where they’re questioning their ability to complete the job, or they might offer an unnecessary accommodation that the pregnant worker has yet to ask for, or they feel like they don’t need that accommodation.

The line there is really encouraging supervisors and managers to have those one-on-one conversations with their workers. And before they implement performance plans or try to terminate an employee, really seeing what are the underlying causes of some of the performance issues and really trusting the pregnant worker to advocate for themselves, to really make that conversation open and inviting.

MC: I can see there’s a privacy issue that you might not want people to know. How does a company give a person accommodations without revealing a medical condition—if I may call pregnancy a medical condition—that a person doesn’t want to be publicized?

KD: We’ve certainly seen for a variety of reasons pregnant workers may not want to share their pregnancy up until the second trimester or the third trimester, especially given folks’ experiences with complications with their pregnancy or just having this be a personal joyous experience with them and their family.

And what we have told our callers on the helpline is that like Title VII laws, the Pregnant Workers Fairness Act and the Pregnancy Discrimination Act or even the FMLA, they all have provisions that require this medical information to be kept confidential. And so it really should be between you and either your supervisor or your manager, or if you work at a larger company where things like this may be handled at a third party administrator.

You can just tell your manager, “I’m looking for the information for leave or for accommodations,” and they will direct you to the third party administrator to go more into detail about your situation. But a lot of times, especially with HIPAA laws and with Title VII laws, that information does need to be kept confidential.

It really is important for workers to feel safe in their environment. Also we’ve heard on our helpline that, at times, supervisors and managers can compare their pregnancies with their employees’ pregnancies. It’s important to recognize that every pregnancy is different, so even if someone had not requested accommodations before, they should be able to really openly ask for that time and that accommodation themselves and be supported.

IV. FIND SPACE AND TIME FOR WOMEN WHO NEED TO PUMP

MC: When my wife went back to work, she had to pump at work. She would close the door, and that was no big deal. Now, 17 years later, that same office has a room dedicated for just that. Two-part question. The first is, that sounds like progress to me, right? The second is the one challenge my wife felt would be that she had to make up that time. Do the accommodations take time into account?

KD: That’s a great question. And this is where the labor and employment laws work together to extend some protections. So under the Pregnant Workers Fairness Act, although an employer doesn’t need to create a space to pump, they do have to provide that time off as needed. And so if that is a 10- to 20-minute break or a 30-minute break to pump and have the frequency as needed by the worker.

That all fits into the reasonable accommodation and interactive process for evaluating that reasonable accommodation. The Pump Act has some labor protections around being compensated for those breaks while you’re pumping.

If you are performing work while you’re pumping—like for teachers, if you are grading papers while you’re on your pump breaks—that is still compensable time, according to your regular salary or your hours worked. 

In other cases, if you’re not working, you may not be forced to make up that time or stay after hours under those labor laws. And so we’re seeing more progress like that where we are seeing those designated workspaces, but we’re also seeing more conversation around what is the time worked? Can it be paid or unpaid time for those breaks and how many breaks does a worker get? The Pump Act says it’s based on the time that’s needed for the worker, but it’s all kind of playing into this landscape of really supporting the working mother, the working family.

We’re seeing improvements in those laws. Some state laws and federal laws, we’re still working on getting those paid lactation breaks across the board, because not everybody works in a setting where they are given paid breaks in general to really work in tandem with their pumping breaks.

MC: Now I’m going to pivot and ask you professional development questions. I don’t imagine when you were in law school you imagined you’d be interviewed about pump laws. How did you end up here doing this advocacy work?

KD: I went to the University of Tennessee College of Law in Knoxville, and we had a few classes on race, gender and social justice, and even employment law policy. 

You always dreaded the policy question because it seems so creative. There was no black letter rule. That challenge made me realize that a lot of lawyers are new to this policy space, and we have to create laws that impact the system. 

I have a background in employment law and in civil litigation, but I really love the policy space of educating folks, giving them the talking points and the technical support, but also litigating some of the laws that we create.

MC: You’ve had an interesting path to this position as well. You did not go straight from undergrad to law school. You were a teacher first, correct?

KD: Yes, I did Teach for America for two years, and I taught social studies and science for fifth graders.

MC: What prompted the move to law school?

KD: I had a heart for community service after college and Teach for America had a position in one of the communities close to me in Clayton County Public Schools. And I realized that as much as you can create a warm environment and care for your students within your classroom and within your grade level, they still are susceptible to the environment and the world around them once they leave that classroom or they go to the next grade level.

And I also realized that a lot of the parents who wanted to be involved or were involved in their students’ education were deeply impacted by their jobs. The ability to go to a teacher conference depended on if they could take off work or if they could take that time off unpaid. And that kind of opened my eyes to what are the ways that the laws impact the parents and the students.

I didn’t necessarily want to go into educational law, but I did want to see what ways I could impact children and families. And so employment law seemed like a good fit for that.

MC: How have peer-to-peer relationships been important in your career?

KD: Oh, they’ve been so influential. In applying for this job, one of my professors had actually worked with one of our co-founders in New York. And so really seeing how they work together, what culture they set, really encouraged me to apply for the job.

And I think as I’ve grown in my experience with policy work, I’ve learned from other organizers, from doulas, from lobbyists, from maternal health advocates who have those relationships with legislators. You can learn how they talk to each other, how they talk to folks to educate them. Because I can be a legal expert, but if I don’t know how to communicate what the laws mean, that means nothing.

MC: So I knew it would be great to interview because you tell stories. you explain things. Did you have to work at that? My first guess was, “oh, she’s a natural.” It sounds like you had to learn that at least a little. Is that fair?

KD: Matt, I will tell you, I’m an introvert at heart.

MC: Oh, come on.

KD: It definitely was learned. Even in college, having those classes with public speaking and later being a teacher, you have to entertain, educate, manage. All of that makes you comfortable with talking. And sometimes I talk too much. I think it’s the Southern hospitality as well. We’re just talkers here. 

MC: I imagine you have heard some unexpected things in your work in the pregnancy space. And I wonder, what’s the story that sticks out with you that you would tell?

KD: My wildest story so far has been hearing from a worker who needed time to pump and she wanted space. She was at a car dealership. And so her job had initially said, you need to pump in the car, or you need to walk away from the dealership and pump there.

And this is a place where there is high heat, it’s not the most comfortable, and they were just not reasonable in talking with her about any other options. They may have even had an open space in the dealership. We talked with her about what she could ask for under the Pump Act, where she could go to enforce it and the process for those limitations, for the timelines. 

She went back to her office and said in the most cordial way, I’ve Googled some things, and I think you may need to be aware of this. Can we work something out? 

I want to say maybe the next day they found a space for her and set her up with a sign and air conditioning and a refrigerator. 

It was shocking to see that was all it takes. And just to think, not everyone has access to that information. One thing we’re really trying to do is create that access with our free helpline. Some employers just don’t know what they don’t know.

Listen on Apple Podcasts, Spotify and YouTube.

This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on November 8, 2023.

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