Episode 502 : The Pregnant Worker’s Fairness Act

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Voice Over: You’re about to listen to an episode of What the Hell Just Happened. Join Paul Edwards and his guests as they discuss interesting HR topics and solve some of our listeners’ submitted questions. 

 

Paul: And occasionally I’ll go off HR topic and talk about whatever I want to talk about. Think barbecue. Space exploration. Technology. Money. Managing. Business. Things that interest all of us.

 

Voice Over: We get a lot of emails with questions. Stay tuned for details on how you can submit yours to the show. And now let’s get started. 

 

Paul: Hi, everybody.  Welcome to the podcast, by the way. I’m joined by Grace Godlasky today. Grace is the manager of the Solutions Center, which the Solutions Center at CEDR is our bank of experts who provide expert guidance, law compliance and problem solving for all of our members that call in. Grace, welcome to the show. 

 

Grace: Hi, Paul. Hi, everyone. 

 

Paul: So Grace has just told me what we’re going to talk about and this has been up in the air. This has been a part of our conversation here at CEDR now for about two months because we saw it coming down the pipe, right Grace?

 

Grace: Yeah. Yes. 

 

Paul: And so I had the unfortunate prior knowledge of what we’re about to talk about here.

 

[laughing]

 

Paul: There’s something called the Pregnancy Workers Fairness Act. So we’re going to refer to it as the PWFA throughout this time. You all got an update from us not too long ago from CEDR. And we told you…Look, for everybody who’s listening and doesn’t know who CEDR is, let me put this together because the podcast is getting bigger and bigger, Grace. So some people are coming to the podcast, they have no idea of the context.

 

Grace: That’s great. Welcome. 

 

Paul: Yes. Welcome to the podcast. If you don’t know what CEDR is, CEDR is an organization, a company, an HR support company that provides a very high level of support to its members and its members are typically dental, medical, medi spas, and we have construction companies in there as well. We’ve got a few, you know, outliers in there. That’s what we do. We provide software, we provide support. And in our real niche is that we’re able to train managers to be better managers and help people work through HR issues and some of them are quite technical, like what we’re going to talk about today and others have some technical component. When the CEDR expert, our experts are trying to help, but they’re also given a human solution to it because a lawyer can go, well, we can fire that person. But typically a lawyer won’t ask, “Well, what’s your turnover rate there? And how long have they been there? And how much have you invested in them?” It’s just like, “Nope, I’m a lawyer. You can fire them if you want to. I can defend that case.” 

 

Grace: Yeah, I can defend that case. [laughing]

 

Paul: I can defend that case and bill you at $400 an hour. Let’s get them out of there and see what they do. 

 

Grace: We’re very much on the prevention side and we worry about the technical stuff, kind of so our members don’t have to.

 

Paul: That’s a good way to put it. 

 

Grace: We are never going to try to come to a member phone call saying, “Did you hear about the Pregnant Workers Fairness Act?” Even though the nerd inside me really wants to do that. Instead, we’re going to just say, “You should do it this way now.”

 

Paul: Right. Right. So we sent out a note to everybody at CEDR that’s a member saying that if you have our employee handbook that the policies that are in place already comply with the PWFA and generally our guidance has complied with the PWFA, but it’s beginning to get more complicated. 

 

Grace: Yes. 

 

Paul: So we’re into the regs and rulemaking component of this. So this law has passed.

 

Grace: Law has passed. It passed June 27.

 

Paul: And it’s in effect right now?

 

Grace: It’s in effect and the EEOC…[heavy sigh] 

 

Paul: We don’t have regs for it.

 

Grace: God bless them. Their banner on their website, if you go there, says “We are now taking claims under the new law.”

 

Paul: But we haven’t given you any guidance as to how to – 

 

Grace: Right. 

 

Paul: We haven’t written the final regulations or any of those things, but it does say that? On a banner?

 

Grace: It does say that. Yeah. 

 

Paul: Okay. [heavy sigh] All right. For all of you out there who are managers and who are doctors or owners and just go ahead and go find the Tums.

 

Grace: [laughing]

 

Paul: Just go locate the Tums. And if not, put this thing on pause or put it in your car and drive down to your local 7-Eleven or your, what’s ours? What’s our thing here?

 

Grace: Walgreens, CVS, oh! QT! 

 

Paul: Go to QT.

 

Grace: If you’re in Tucson.

 

Paul: Get yourself a slice of pizza, some gas, some Tums, some breath freshener. 

 

Grace: Some caffeine.

 

Paul:  You can get coffee there, I found out.

 

Grace: If you’re in my neck of the woods, go to your Wawa.

 

Paul: To your Wawa?

 

Grace: If you’re in the other side of the state where I live, go to your Sheetz. 

 

Paul: Sheetz? I was going to say Sheetz.

 

Grace: Yeah, yeah. Let’s start a debate. [laughing]

 

Paul: A shout out to all the – Okay. All right. Now we’re going to talk about the PWFA. It’s important to note here, correct me if I’m wrong, Grace, that this law applies to employers with 15 or more employees.

 

Grace: 15 or more, yes.

 

Paul: We often say, just be careful with that number, thinking that it doesn’t apply to you. 

 

Grace: Right. 

 

Paul: Because you can slide into where this law applies to you and you don’t realize it very easily because you have your two kids and your ex-spouse, your current spouse and several other people.

 

Grace: On your payroll you’ve got interns, you’ve got temporary people, you’ve got your office cleaner that you’re paying on payroll and those aren’t people that aren’t your normal team members. You may not be counting even yourself if you’re paying yourself through payroll. 

 

Paul: So be careful because the number is the number and sometimes it’s not apparent. And the other thing is that we tell you to be careful, because sometimes a federal law will be in place that applies to 15 or more, but some of the provisions in it match provisions that are just as strict, that are from your state and your state put in laws that apply to people maybe with two employees or more or one employee or whatever. 

 

Grace: Yeah. 

 

Paul: So just be careful with the 15 mark. Even if you’re like, “I only have 12 employees,” you ought to be listening to this.

 

Grace: Don’t drop off the podcast yet if you have fewer than 15 because a lot of this does matter. 

 

Paul: Okay, So the EEOC is typically going to be the one that brings these sort of things forward, these kind of proposed rules. In this case, they put this law in place and they’re writing the regulations right now and as you stated earlier, they’re already putting a banner up saying we’re receiving complaints, which just makes me as an employer and as an advocate for employers and for employees, for that matter. It just pisses me off when a government agency says, “Give us your complaint,” without giving – 

 

Grace: Without giving us the tools that we need.

 

Paul: And the guidance to avoid the complaints. So way to go there, EEOC. So, Grace, the PWFA, what did we have before? We have some title seven stuff in there that protects pregnant workers. We have the PDA.

 

Grace: It’s the Pregnancy Discrimination Act. It is the PDA. But all that that says is you have to treat your pregnant workers the same as you treat people with disabilities. So it didn’t actually give any specific guidance about pregnant people. It just says if you’re going to make an accommodation for your person with a back problem or a heart problem or diabetes or whatever it is that they have, you have to give those same courtesies and accommodations to pregnant workers. That’s all it said. 

 

Paul: It didn’t really expand anything.

 

Grace: No.

 

Paul: It was just down that very narrow alley. 

 

Grace: Yeah. 

 

Paul: That it addressed what people are supposed to do. Okay. So the PWFA has really kind of blown my mind because when we first looked at it, we thought, “Well, this is a nothing burger.” 

 

Grace: Absolutely. 

 

Paul: We really did.

 

Grace: I did too!

 

Paul: We thought, “Wow, they’ve just passed another piece of legislation that doesn’t do a whole lot.”

 

Grace: They threw themselves a little party, and this doesn’t really do very much.

 

Paul: It doesn’t do much and we were like, “Well, since we were already doing most of many of the things that they’re advocating for, it’s not really going to impact our members that much.” But that’s not true.

 

Grace: Now we’re in it.

 

Paul: Now we’re in it.

 

Grace: Now we’re helping members and we’re seeing how much it changes.

 

Paul: So when you guys help a member, what generally happens is that they put a call in to us and they say, “Hey,” and it can be as simple as, “I have an employee who I’ve known is pregnant, so we took care of everything like you guys told us to and everything’s fine, but she’s just come to me,” and then they describe some issue. Like this person is asking for – 

 

Grace: They’re asking for something. The most common request, because we deal with a lot of medical settings, is I am pregnant. I am not comfortable being around an X-ray machine, a nitrous machine, chemicals that might be present on site. I don’t want to expose my fetus to those items. So just general workplace hazards is a very common request that we see. 

 

Paul: And they run the gamut because folks get all kinds of information from all kinds of different directions. 

 

Grace: Oh, my goodness. 

 

Paul: Like, “I’ve heard that squeaky cabinets can cause this problem.” 

 

Grace: Yeah, “We need an air filter in here.” Just anything can be perceived as a hazard and employers, too. It runs the gamut because a lot of employers think that things are dangerous and they want to kind of protect their pregnant employees from those items proactively from a good place. And then others are like, “I know my levels. I know my hazards and I don’t think it’s a problem.” But all of that is sort of irrelevant because when somebody comes and says, “I’m asking for duties modification,” we had a process we followed under the prior legislative landscape that was basically, “Go to your doctor, have your doctor tell us what accommodations you need, and we will see if we can make those accommodations.” 

 

Paul: Which is really, to me, the best way to do this. To the greatest degree, I think that that helps solve about 95% of the problems that we get. Because, first of all, we have to be very careful because we work with so many medical practices. You want to be careful as a manager, and if you’re an owner doctor, you don’t want to be diagnosing. You’re going to be careful not to diagnose. So that’s kind of that one thing you just mentioned there, where we have a doctor call and say, “Well, she hasn’t asked me for any kind of accommodation around taking X-rays or being around anesthesia, but I kind of want to be proactive and tell her she needs to be careful.” 

 

Grace: Yeah.

 

Paul: Which by the way, Grace, just left turn. [tire braking noise] I’m going to stay on topic, though. You really need to, if you’re listening, investigate that further. I sat on a board that wrote a bunch of guidance for dentists who are practicing, who become mothers. They wrote a bunch of guidance for those doctors and we had an OB-GYN in from Duke University who said, “We give pregnant women nitrous oxide and it doesn’t cause what you guys are saying.” And she had some other things to say. So that’s as far as I’m going to go. You should look down this rabbit hole because it is not what we think it is.

 

Grace: Right? It’s not always the most straightforward.

 

Paul: Yeah, it’s not as straightforward. So you really kind of want to take a look at it. Okay. All right. Now I’ve created more doubt in everybody’s mind. Let’s get back to the PWFA. 

 

Grace: Previously it was: Go to your doctor and we’ll make accommodations that allow you to perform what’s called the essential functions of your position.

 

Paul: Right.

 

Grace: And essential functions are just the big things that are absolutely necessary for you to do your job. So now the PWFA is calling into question two big things in my mind. It’s: when can you ask for the doctor’s note? Because it seems like they don’t really want (they the EEOC) they don’t want you automatically playing that doctor’s note card anymore. They want you to really be saying, “What could that doctor tell me that I don’t already know?” And philosophically, it seems like the PWFA wants to allow pregnant workers to sort of speak for themselves about their own needs rather than having to say, “I have a disability that my medical provider needs to tell you about.” Full disclosure, I mean, I’m a mom of three and I’ve spent like years of my working life physically pregnant. So as a human, I get it.

 

Paul: All of your working life here.

 

Grace: Yeah! Paul’s like, “A lot of it! Here at CEDR!” [laughing]

 

Paul: A lot of it here at CEDR.

 

Grace: But truly, I see the human element of that, of the philosophy behind the law and I think it helps our members and probably our listeners to see that side of it. Seeing the manager and owner and the CEDR and the HR professional side of it. It gives a little bit of a complicating…So that’s that. And then the second big thing: so they’re calling into question when can you ask for a doctor’s note? They’re calling into question that someone doesn’t actually have to be able to perform the essential functions of their job. They’re saying ‘temporarily’, but these proposed regulations say ‘temporary’ can be up to 40 weeks and what happens to be, coincidentally, 40 weeks long? 

 

Paul: Isn’t that pregnancy?

 

Grace: Pregnancy. Gestation. [laughing] So I mean, they’re saying, basically, potentially the entire pregnancy, you would have to say –

 

Paul: Hang on a second. I have to get my Tums out.

 

Grace: Yeah. [laughing]

 

Paul: Okay. All right. So I do want to make this point about, and you can only guess what the EEOC is thinking sometimes, part of the problem with sending someone to a doctor, especially if they don’t have health insurance, is you’re also sending them to spend $175 for a doctor’s visit in order to get a note maybe about something that you could talk to each other about. But nonetheless, even if it’s not no health insurance, you have health insurance, there’s still going to be co-pays. There’s going to be hours missed, and unpaid, of which are kind of putting this extra burden on, and I think what they’re saying is, is, “Look, if you’re throwing up, you ought to be able to say to your employer, ‘I’m throwing up, and it’s been going for a while now, you could even say they’ve given me all the medicine they can give me. It’s working. It’s not working. These are the things that it’s doing to me.’” So that all makes good sense. I also think that they’re trying to create discourse between the worker and the manager whereby people can reach reasonable middle ground on things. And in the end, a person can stay in the job if they can stay on the job.

 

Grace: Yes. 

 

Paul: Now, I don’t understand how…So, okay, that was the first thing that you said. Maybe you shouldn’t go to the doctor. So I already told Grace I was going to disagree with this.

 

Grace: Safe space. We can disagree on this. 

 

Paul: Yes, we can. It’s a safe space. We can disagree. Well, I do agree that I don’t have a problem with the first part of this, but I think for the most part, it was so protective of our employers out there and I’ve never seen anyone abuse this. Like, “I’m going to teach her a lesson every time she tells me she has a problem, I’m going to send her to the doctor to get a doctor’s note.” That is not that is not how this has been used. It’s just not how it works out in the real world. 

 

Grace: Normally the manager is sending the employee to the doctor because they’re still confused. You know, if you ask a worker, think about your average front desk person, your average assistant, tell me about your needs. They’re not necessarily checking the box of is this ongoing? Is it episodic? Is it temporary? And that’s where the doctor can help to guide that conversation in a better way and it’s not about, “Hey, employee, you can’t speak for yourself,” but it’s about “I actually do need more information about what you’re asking for.” And I don’t think that the PWFA changes that. What it changes, though, is that managers just have to pause before they push that easy button, give me the doctor’s note and say, “What would the doctor be telling me that this worker hasn’t already told me? How does that advance this conversation and be sure that they’re rooted in real firm footing?” 

 

Paul: Okay, so I’m not a doctor. You’re not a doctor. How would I know what the doctor would not be telling me? 

 

Grace: Great question! In the background here at CEDR, we have, and we didn’t make this stuff up, we have some kind of guided forms that are adopted from examples that the federal government gives about the types of questions that you can be asking when somebody needs an accommodation. And so we would look to that and we would try to ask the same question of each employee. Not dig deeper on your employee who happens to be an over 40 pregnancy because you assume that that’s higher risk and that there might be more medical issues. So we do try to ask a consistent set of questions. So we look to our forms. How as a manager would you know? You would probably compare it to the form that you would send to the doctor and kind of go through it and say, “Do I have all the information that I need here?” And if it’s like, “Yep, this is temporary, it’s morning sickness, I just need to delay my start time and have extra breaks. What else would the doctor tell me? Nothing.” We’re probably good. 

 

Paul: Okay. All right. So this form that we’re talking about is not available. I mean, it is available for CEDR members, because that’s what we do. We put our lawyer brains in there. The lawyer brains go in and start reading the guidance. We look at what other law firms are saying out there. We look at what other HR organizations are saying. We just look at the total of all the information that can come through, and we do an analysis and we have to go down the EEOC’s…You know, guys, there’s opinion letters out there. They’re writing about their guidance before they give their guidance, and then finally, when they publish the regulations, we take another look at it and then we try to boil that down into a sheet of paper for you, if you’re working with us, so that you can do this analysis between the two. Nonetheless, I just think this is the stupidest thing I’ve ever heard in my life.

 

Grace: Do you want to hear something stupider?

 

Paul: Yes. 

 

Grace: Okay. So the little piece here, they’re starting to speak about those essential functions. And they’re saying you can’t decide for a pregnant worker that they need to be on leave. 

 

Paul: But we’ve always known that.

 

Grace: We’ve always known that, but the standard for whether someone can kind of stay in the workplace and keep working is whether they can do those essential functions or not. And now they’re saying you have to accommodate even if somebody can’t do the essential functions. 

 

Paul: So they get to keep their job and get paid? Or they get to go?

 

Grace: They get to stay at work.

 

Paul: Okay, so this is a big deal because ultimately what we have always been able to do is go use this interactive process that we’ve been talking about, where you send the person with a form to the doctor. They talk to their doctor about it, and eventually you can get both parties to a place where it’s like, “Well, what do you want to do here? Here you are. You are specialized, licensed. You are one of two people, for five doctors, of which we do anesthesia on pediatric anesthesia. You are specially trained to be in that room with me. When you are not in that room with me. I can’t perform any of these things. That is your position here. You don’t do anything else.” How are they supposed to keep that person in their job? 

 

Grace: The only way they can say, “I can’t keep you in your job,” is to argue undue burden.

 

Paul: And be a massive undue burden.

 

Grace: Massive undue burden. 

 

Paul: By the way, I don’t know. I’ve been saying this a lot, so I’m going to say it again. The backbone of this country is not our presidents, our Congress people. It’s not Google. It’s not the massive, it’s not Cox, It’s not Verizon. The backbone of this country, that runs this country? Are small businesses. 

 

Grace: Yep. 

 

Paul: They provide the jobs. We provide the engine. We provide money to the local area. We’re paying local people. We’re not like McDonald’s who takes dividends. They pay people the least amount. They can do no health insurance. They don’t worry about any of that. And they just send the money out to people who are buying shares of McDonald’s. We keep the money here.

 

Grace: Small businesses. I mean, you look at my son who plays Little League. It’s never QT on the back of his Little League jersey.

 

Paul: No!

 

Grace: Who’s sponsoring those teams?

 

Paul: It’s Bob’s heating and air conditioning! 

 

Grace: Yeah! It’s Zambrano’s Pizza. And I know Mr. Zambrano, right? They are the lifeline. 

 

Paul: Hey Mr. Zambrano.

 

Grace: Yeah. [laughing] 

 

Paul: Shout out!

 

Grace: Hey, thanks for sponsoring Max’s team last season! So we want to help those small businesses who are the lifeblood of our country stay out of hot water.

 

Paul: EEOC doesn’t. 

 

Grace: EEOC doesn’t, but that’s where CEDR comes in. So we’ve used a lot of technical language. We’ve gotten into kind of the weeds with the PWFA, but we’ll circle back to…I’m nerding out over this, but if I’m a manager, I don’t have time to do that, and so how do I keep myself out of hot water? When you have a pregnant person –

 

Paul: Okay, so for the listeners out there, no matter, this doesn’t matter. You’re not a CEDR member, you’re not any of it. This is like the best guidance that you could get today as we’re waiting for these regulations.

 

Grace: Today. Right. 

 

Paul: Yeah. 

 

Grace: We’ll check back in December after they finalize them. But you should think critically before you ask a pregnant worker for a doctor’s note. Pause. Consult with someone. Really ask yourself about this new standard. Update your language. I think that if we’re saying the same old thing and we’re using –

 

Paul: Update your personal language. The words that come out of your mouth. You have to retrain yourself.

 

Grace: Yeah. So we’re no longer saying it’s ‘the disability.’ We have to say it’s ‘a limitation related to pregnancy.’ Updating how you’re speaking about it. Paul, you said the most genius thing before we went live and it was: You’re really as a small business trying to update what you’re doing so that if a plaintiff’s attorney, and there’s a there’s a sea of plaintiffs attorneys out there chomping at the bit –

 

Paul: That can’t wait.

 

Grace: Because of the Pregnant Workers Fairness Act, this is a new source of business for them. So when they find your pregnant employee and the things that you’ve done with your pregnant employee and the emails that you’ve sent to your pregnant employee, they go, “Hmm. The meal is not worth it.” 

 

Paul: It’s a start. If you understand this and you do it well, it’s always been that way. I said, “If you do it well.” If you communicate well, if you follow the interactive process, follow the guidance? It can be a stop sign to a plaintiff’s attorney, because as soon as they see that you’ve communicated the way that you were supposed to and done the things you’re supposed to do, then they really don’t have a case. 

 

Grace: They back off.

 

Paul: Yeah, they just back off and they go away. 

 

Grace: Yeah. There’s lower hanging fruit out there. You just don’t want to be the lowest fruit.

 

Paul: Yeah, you just don’t want to be…You only have to be faster than your friend. 

 

Grace: Yeah. [laughing]

 

Paul: Yeah. If the bear is chasing you. Now you’re going to have to update your language and your understanding even more because what you’re really trying to do is leave behind a paper trail that any reasonable person who finds it would say, “Well, they did do the best they could.”

 

Grace: “They did comply.” So editing out discussion about, “Allow you to perform the essential functions of your position.” Editing out the suggestion that, “If you can’t do this full job, you’ve got to go out on leave.” By updating the forms that you’re using so they don’t say, “I have a disability. Check.” Because that’s not what a pregnant person has to say anymore.

 

Paul: Right.

 

Grace: And then keep listening because I’m sure we’ll keep talking about this, but it really doesn’t have to be that drastic. It doesn’t have to be that hard. You don’t have to have a law degree to keep speed with this. It’s just you have to be cautious about your actions and your language going forward as we’re seeing it play out. 

 

Paul: Grace, I think that I’m going to go back to that ‘Small businesses are the backbone and providing the jobs.’ 

 

Grace: Yeah. 

 

Paul: And if you’ve got 15 employees and this applies to you or you have 20 employees, it can be very difficult. It would be quite a burden to hold a job for a $40, $50, $70,000 employee while hiring another $40, $50, $70,000.

 

Grace: Absolutely.

 

Paul: In fact you would be reducing your own personal income in order to be able to do that at that size. So this is no small thing that they’re putting in place here, and we’re not going to talk about – Because ultimately everybody’s thinking, I know what you’re thinking. When can I draw the line? When is that an undue burden? We’re not going to go into that right now because we don’t quite know yet, Grace. We don’t have the regulations. We don’t have everything in place to be able to say to people, “Here’s where you might be able to draw the line and not keep this person on your payroll and not make it go forward.” On the other side of this, popular opinion or not, Grace, you’ll like this. I think most people will get it. As soon as someone becomes pregnant, if they have to take time off for it, they generally are not getting paid. The FMLA that protects, that applies to 50 or more employees, there’s nothing. There’s no safety net there for them. 

 

Grace: Right.

 

Paul: There’s no pay. There’s nothing. For me? This is a societal issue. Many states have put some like three- quarter pay, some paid family leave in place. I’d like to see it at the federal level. It would be one thing. I just think that there has to be some different support here because dumping this back on somebody who has a small business is just… I mean, there’s been plenty of times when I’ve been building a business where if you put the onus on me, what happens if I have three employees go out? And I have had three employees, when I only had 17 employees, get pregnant. What happens if I have to maintain the salaries of those three employees? It’s just not possible for me to be able to do that as a small business, and I think everybody who owns a business knows this. There’s like this curve of profitability and you’re not always in the profitability, the good part of the curve. You’re up and down in business, you know, it ebbs and flows now.

 

Grace: Yeah, and that’s a great point. That’s the next phase that we could anticipate. I don’t know that we can see it any time soon, but it’s a lot of why you said when this law was first passed it felt like a nothing burger and that’s why it felt like a nothing burger, because we know as HR professionals that the states know how to offer paid leave. We know how to fund a paid leave system and it’s probably one solution to the issue of working mothers being a working mother in the United States, and that gets a little bit outside the scope of our podcast. This is a step and we do track legislative trends at CEDR. So the next step would be something like that, but we don’t have any sort of timeline. I’d love to see that happen for our members.

 

Paul: Oh me too. I would like to see something in place for society. Just in general. Just to support working moms and families that are having kids and you know, all that. Okay, Grace, this has been a heartburn of a conversation.

 

Grace: [laughing] But his brain needs a break now.

 

Paul: Everybody needs a break after listening to that. So the PWFA is in effect. We’re waiting for the rules and regulations to explain to us what we should and shouldn’t do. This is one of those regulations that is going to play out in court a bunch. We’re going to see some rulings. It is at the federal level, which means that it applies in all 50 states. You just got to be careful out there and just keep paying attention to the subject and learn the new language and for those of you who are listening, that are members over at CEDR, we’ll be giving you new language and we’re training the team here on how to help everybody walk through these issues.

 

Grace: Yeah, we’re actively doing that now with our members. It’s really fun. You have to be a lifelong learner if you’re in HR employment law at all, and this is just the latest thing. Yeah, so it’s fun. 

 

Paul: Okay, Grace. Thank you so much. 

 

Grace: Thanks, Paul. 

 

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