Mission to Grow: A Small Business Guide to Cash, Compliance, and the War for Talent

MTG - Brian Shenker
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Brian: So the goal of this was to put pregnant women in a place where they don't have to decide between economic security or health.

Intro: Welcome to Mission to Grow, the small business guide to cash, compliance, and the war for talent. I'm your host, Mike Vannoy. Each week, we'll bring you experts in accounting, finance, human resources, benefits, employment law, and more. You'll learn ways to access capital through creative financing and tax strategies, tactical information you need to stay compliant with ever changing employment laws, and people strategies you need to win the war for talent.

Mission to Grow is sponsored by Asure. Asure helps more than 100, 000 businesses get access to capital. Stay compliant and develop the talent they need to grow. Enjoy the show!

Mike: The Pregnancy Workers Fairness Act, the PWFA, uh, a relatively new law that I think a lot of employers just simply don't know about. Uh, and they need to because most employers, uh, will talk about the requirements [00:01:00] for which employers must comply, which, but, and which don't. Unlike some HR laws that don't really kick in until you have 50 or 100 employees.

This is really including most small businesses are going to have to comply with this law. Uh, and I think very few people even know what the heck it is. So we're going to unpack it today. If you're a regular watcher of the show, you know, Brian Shenker, uh, from Jackson Lewis, uh, HR attorney, uh, out of New York.

Welcome back to the show, Brian. So,

Brian: Thanks for having me, Mike.

Mike: so Brian, what do you think the number one thing that everybody needs to understand about, well, I guess we'll, we'll call it the PWFA or that the act, uh, the, the, the pregnancy workers fairness act. And

Brian: let's, let's start with, uh, the fact that it's similar in many regards to the ADA, right, the Americans with Disabilities Act, and the way, uh, that the ADA requires, uh, reasonable accommodations. But, in many regards, it's also different [00:02:00] from that. So, I think the overarching message that I would send to employers is do not assume that because you have a system for compliance with the ADA and reasonable accommodation requests related to ADA matters.

That, that will suffice under the, uh, PWFA. Uh, the PDWFA, uh, has reasonable accommodations, but it's a different framework than under the ADA, and we'll get through those. Um, but, you know, the, the starting place for all of this, you know, before we even get into what the Act requires, is looking at the reason this was passed and looking at, you know, why, uh, Congress, uh, found the need for passing the Act.

And basically it goes to the issue of a gap in employment law that the ADA was not covering. Uh, which is Pregnant Women in the [00:03:00] Workplace. Uh, the availability of reasonable accommodations for pregnant women until the PWFA was very limited. Uh, essentially the main accommodation that would be provided to pregnant women, uh, prior to this was leave.

Uh, you know, time off and that presented an issue in and of itself that a pregnant woman then had to choose between her economic security, right? Because if she took this leave, she's typically not being paid or her health, right? Continue working to get paid, but maybe your doctor is saying you shouldn't.

So the goal of this was to put pregnant women in a place where they don't have to decide between economic security or health. And so the main thing here. is that the law is now telling us that reasonable accommodations. Should be the number one priority in the interactive process that goes along with that and that leave for a [00:04:00] pregnant woman Is really just a last resort, right?

So with all that being said what what does the law actually require,

Mike: just to be clear, so the hole in the ADA, Americans with Disabilities Act, is that being pregnant wasn't considered a disability. It really comes down to that, right?

Brian: right? And so an employer was only obligated to, you know, accommodate Some did actual disability stemming from that. Uh, and you know, there's an issue because there are lots of conditions that come up with pregnancy that don't fit within the ADA definition of a disability. And we're, you know, preventing a pregnant woman from working, but not giving her the ADA protection.

So that's where this act comes in and tries to really, uh, fill that gap and provide pregnant women. with the [00:05:00] means to get a reasonable accommodations so they can keep working, keep being paid. in a safe way, you know, that that's, uh, you know, conducive to their, their health.

Mike: So we're going to unpack today what's different about the PWFA versus ADA. But fair to say that ADA is a reasonable beginning framework to think about this, right? That, Hey, it's, it's, it's a set of rules for employers to think what are the reasonable accommodations they should be making to an employee who's pregnant.

And, uh, what are the kind of the trip wires that you got to be thinking about when you need to be providing leave? That's, that's really, that's really the framework, right?

Brian: Exactly right. The, the same interactive process that, you know, we, we talked about with the ADA, that's still applicable here. Uh, you know, we'll talk about differences in terms of, for instance, documentation that can be requested [00:06:00] and the differences in reasonable accommodations, because there's a very big, you know, difference that we'll get to there.

Uh, but, you know, the Undue Hardship Inquiry, right, that's, uh, very much, uh, similar or close to the same as under the ADA. Um, so yeah, there, there are similarities, but I think the main point is don't presume it's the same. Uh, you need to have an understanding of what the Act requires because it's, uh, it's going to be more generous in various ways, uh, than the ADA is.

Mike: Got it.

Brian: yep, and so getting to the requirement and obviously there's a load here. There's a lot in this requirement and we're going to spend our time today breaking it down. But the PWFA requires employers with at least 15 employees to provide reasonable accommodations to a qualified employee's known [00:07:00] limitations.

Right, so we're not saying a disability, but there are known limitations related to, affected by, or arising out of, uh, pregnancy, childbirth, or related medical conditions. Unless it would cause, the accommodation would cause an undue hardship. Um, so a lot there, if you're familiar with the ADA, you might, you know, see that it's using slightly different, uh, words than the ADA uses.

And from those differences stem, you know, the, uh, differences in operation of how the law works. Um,

Mike: Reasonable Accommodations to Known Limitations. This sounds like a bunch of lawyers wrote this, so, yeah. Help translate for us common folk, Brian.

Brian: Yep. So let's start with, uh, with known limitations, right? So employers are only obligated under the PWFA to accommodate an individual's known limitation. [00:08:00] Um, so a limitation is going to be defined much more broadly than a disability, right? A limitations, you know, it's going to be any physical or mental condition.

That's essentially related to arising from, uh, affected by pregnancy, childbirth, um, and those types of related medical conditions. Um, these can be minor, right? Or episodic, right? These don't need to meet the definition of disability under the ADA. So that's the first key distinction, right? These don't need to meet that definition of disability.

Uh, but also what is known. This is a little different than how the ADA works, uh, right. And you know, what, what is known, right? So you might see that someone's pregnant, right? You know, that can be, uh, something that's quite obvious. Um, and, uh, there's something in the PWFA that [00:09:00] says, even if a third party, uh, you know, knows about the, uh, the, uh, condition or whatever it is that, that can be, uh, you know, considered employer's knowledge.

So for instance, the law says that, you know, maybe a third party administrator, uh, of some type of leave, right, might get information about conditions. Uh, you know, employers should be sure that they communicate, uh, with their administrators of, you know, benefits that they let the company know, uh, about, you know, a condition that the employer might be, you know, considered aware of.

Mike: you think of a practical use case? I'm having a hard time picturing what that one looks like.

Brian: yeah, you know, I'm not sure that that would come up so much, right? I'm not sure that's such a big concern because if it's getting to the point of going to some type of leave under, you know, uh, a third party [00:10:00] administrator for the company. There's some discussion. There's, you know, things that have occurred at that point that typically the employer is aware, you know, generally what's going on, why they're doing, you know, going there and getting those.

So I think the bigger issue would be. that a supervisor, right? And this is similar to the ADA, right? That a limitation could be communicated to a supervisor or manager, uh, someone who has, you know, supervisory authority, but not HR compliance authority, um, and that those managers would need to convey the limitation, right?

So for instance, like let's say I was a pregnant woman and I showed up to this webinar 10 minutes late today. And I, you know, I said, ah, sorry, Mike, you know, uh, you know, morning sickness got me again, but I'm good to go. Right. That might be enough to tell you as an employer that I might need an accommodation to maybe come into work a little later or start my day [00:11:00] later, or, you know, somehow deal with the morning sickness.

So.

Mike: So, you're saying it's not the responsibility of the employee alone to bring this information forth and tell the employer. The employer should. How do I say it? Uh, right. If the employer observes or hears evidence that the employee is pregnant, they really need to act on it.

Brian: That's right. And not just that they're pregnant because again, these things can come up after the pregnancy, you know, and as we'll discuss maybe even before the pregnancy. And so a lot of it is, uh, you know, training managers that if you hear something like that, don't ignore it and pass it up the line to, to HR, right?

Because, um, you know, just like the AD, you know, a communication about a limitation can be verbal, right? There's no formal, uh, you know, reporting. [00:12:00] And again, right, it doesn't need to be an employee coming in and saying, I have this limitation. Here's what I need. they might just be commenting on some difficulty they're having, maybe the intent of which is unclear that they're even looking for a, uh, an accommodation.

But because that issue has been conveyed, the employer, right, needs to act on it. And that doesn't mean acting isn't giving an accommodation right away. You know, the first step is always Engaging in the interactive process and

Mike: That's where I wanted to go. Our mutual friend, Mary and I, we've had talked on this show several times. Um, and employees at work, they're, they're just beyond visibly obvious. They're pregnant, maybe the third trimester. Um, and Mary's giving guidance. that you don't proactively start making accommodations.

And I use an example, like my dad, who's been out of the workforce [00:13:00] for a long time, wonderful, uh, chivalrous man. He would have thought it was his responsibility. Oh, let's give her a chair. Let's give her a different job. That isn't so strenuous thinking he's proactively being a good man and being chivalrous.

And she's advising, no, you need to, don't focus on the fact that she's pregnant, focus on the, on the fact that ask her. What accommodations does she need? And that's the conversation. It's not, so it's not as simple as, Oh, I know this person's pregnant because maybe they had a baby shower in the break room and that's how you found out that this person's pregnant.

Um, it's the conversation with that employee to understand what accommodations they need. Am I thinking about that? Right.

Brian: Exactly. Right. And it's about identifying what that limitation or the limitations are, and then having discussion about how we can resolve those. And exactly, Mike. And I think that's, You hit the nail on the [00:14:00] head with, you know, discussing, you know, what your father may have done, right. And be trying to be chivalrous.

And I think that's part of why the PWFA was passed because I think in the past a lot of employers first impression was, Oh, This person's pregnant. They have some issues. Let me put them out on leave, you know, to protect them. Right. And, you know, look, there are situations where a condition arises that probably morphs into an actual disability where a medical provider will say, yes, leave is required because they can't perform the work now.

But in the vast majority of cases, there's just, you know, some small or minimal issue that could be resolved through some type of an accommodation or even bigger issues, right. That could still be, you know, accommodated. Um, again, yep.

Mike: Once, so you mentioned earlier that the, [00:15:00] okay, Hey, I'm sorry. I'm late for the meeting, morning sickness this morning. Hopefully that's okay. you know, I'll, try not to, but this could happen again. That should be a trigger for an employer to make an accommodation because it literally impacted work, but due to the pregnancy, let's have that conversation. If an, if an employer sees that an employee is pregnant, Just the signs are obvious. There was a baby shower. The people are talking about whatever, however they know. Is it the responsibility of the employer under this act to proactively talk to this employee and see if they have any, needs for accommodation, or is it the responsibility of the employee to be forthcoming saying, Hey, I got some morning sickness, I might be a little late.

Can I, looking for some leeway on the attendance policy? Or, Hey, can I get a chair for whatever that accommodation might be? What, where, [00:16:00] where does that belong?

Brian: It's definitely more so on the ladder where the employee, right. It needs to communicate something, right. Because We're talking about a known limitation, right? So it's not enough that you, the employer knows the employee is pregnant or, you know, uh, trying to get pregnant or whatever it might be. It's that the employer needs to be aware of a limitation, right?

So that's the key. And exactly. So that could come up with the employee, Maybe complaining or making a comment about the limitation. Maybe they're not even asking for something. They're just venting or explaining an issue they're having. Or it could be more evident, right, more blatant where they're coming to you and saying Since I've been pregnant, my, my chair, my work chair is really uncomfortable.

Can we look into, you know, something with more, you know, lumbar support, right? Um, [00:17:00] you know, that could be, you know, something. So, right. And that's why I say the, the ones that are less obvious, I think are the ones that we need to train, you know, managers to be aware of, right. That and look, sometimes this comes up with the ADA as well.

that it's not as obvious, right? But there, there's some comments, something being said about, you know, an issue, and it's probably enough to at least prompt a discussion, right? And that's all it is. In the end, there might not be an accommodation needed, but as the employer, you initiate that interactive process saying, yeah, what's the limitation?

How can we help you? Right? That those easy questions to ask. And the answer might be, no, nothing. I'm good. Or it might be, well, here's the issue. And then as we'll discuss, you get into the interactive process of trying to figure out. Uh, you know, what can be done. Um,

Mike: Brian, I know employees, so the [00:18:00] intent of the act is, I mean, you, you hit it. It's to provide further protections, uh, in, in accommodations, leave when necessary for, for employees who are pregnant. All good stuff. No, no, no, no issues. I just know that small businesses, especially employers. So it sounds like, first of all, we should, we should come back to this 15 employee.

Is it 15 FTE? Is it 15 total people? It's active. How we calculate to the 15 is probably important. Let's come back to that. But if you're, if you're a big enough employer, which is most that you have to comply with this, I think most employers heads are spinning. It's like, wow, I'm not even supposed to ask if they're pregnant because Cause I could get sexual harassment or, or discrimination, but now I'm responsible for this.

Help, help people to get some sanity here. Cause I don't, of course there are employers [00:19:00] who are just jerks and they're, they abuse their employees and don't treat them well. The vast majority of employers, they care for their employees. They want to create a good environment. They're also scared to death of getting sued.

They're also scared to death of not breaking some law they didn't even know existed. And so I can just see how this is gonna, this could freeze people. It's like, wait, I thought I wasn't supposed to ask about that. Now you're telling me I have to ask about it and I have to provide accommodations. But what if I.

Talk about accommodations and then they weren't pregnant. Maybe they just put on a bunch of weight and now I'm being sued for sexual harassment. I mean, help me, give some practical here.

Brian: so two points, right? And the first one is going to maybe add a little complication to this. And the second one will hopefully let us help us figure out what to do. So one additional complication is that the PWFA, while it says pregnancy, right? It's not only pregnancy, it's childbirth, and then this key, [00:20:00] related medical, uh, conditions.

So, this is very expansive. So, I don't want, our employers here to have the impression that we're only dealing with a pregnant woman, right? This could potentially deal with, anything involving the reproductive system of a woman, right? So it could be a current pregnancy. It could, this condition could relate to a past pregnancy, a potential or intended pregnancy, right?

Which could potentially include, you know, infertility or fertility, treatments. it can also include, you know, labor, childbirth, right? A cesarean delivery and, you know, resulting things from that. You know, so it's much more broad than, you know, someone who's just had a child and is experiencing morning sickness or something like that.

Um, and then I think one key thing to understand is it also [00:21:00] applies Uh, conditions that are exacerbated by pregnancy or childbirth. So, you know, we could go through the list of childbirth and pregnancy related things like, you know, postpartum depression, lactation issues, you know, things with termination of pregnancy, but It could be some condition that, you know, such as, um, you know, high blood pressure or, you know, chronic migraines that are exacerbated by a childbirth or pregnancy.

Of course, in those situations, the employer, uh, might need to obtain documentation from a medical provider. explaining that, you know, this condition is related to childbirth or pregnancy, but just remember it's not just, you know, someone could not be pregnant at the moment, but still have protections under, under this law.

So it's very broad in that respect [00:22:00] that anything, uh, touching upon, uh, childbirth, uh, pregnancy, termination of pregnancy. Um, and so while many times we think that, you know, pregnancy related issues and accommodations are only during pregnancy and maybe, you know, six, eight weeks thereafter, this could be much, you know, this could be before the pregnancy.

This could be well after the pregnancy. Um, and again, There are so many things, you know, there are final regulations issued by the EEOC here that go through, you know, a non exhaustive list of examples of, of things that could be conditions. And again, these aren't disabilities. These are, can be less severe, uh, conditions.

Um, and so an employer really needs to think about that, right? The same way, uh, Mike, that we often under the ADA tell employers, Don't get hung up on the [00:23:00] disability requirement, right? Cause lots of things can be, you know, considered disabilities. Same thing here, you know, don't get hung up on the actual medical condition and, you know, whether it, you know, it concerns pregnancy, childbirth, most of these things will, and if there's any question, we can get documentation, uh, from a, um, but now I think going to the heart of, of the, of this, uh, of the PWFA, um, The way we are going to accommodate, uh, employees has two different ways, right?

And one of those is going to be the traditional way, just like under the ADA, where an employee, you know, with a reasonable accommodation can perform all of the essential functions of the position, right? And that means they're, they're qualified. So basically, right, that's our traditional ADA [00:24:00] accommodation that once they receive the accommodation, They can perform the job just like any other employee.

Right? And you know, there's no time limitation on that accommodation. It's provided, you know, for the duration of, you know, however long they need it. So that, that's the easy part under the PDFI. PWFA, right? That's the easy account.

Mike: I think most people get it, but maybe just throw out a couple of common examples of what, what those accommodations might look like. Maybe in an office setting, a retail setting. A manufacturing setting.

Brian: Yeah. So great. So like we said before, right? Maybe. You have someone who works in an office and, um, you know, they need extra time to, you know, um, you know, express milk. So you're going to give them, you know, you're going to accommodate them with time throughout the day to do that. Um, or it could be the chair we discussed earlier, getting them something in their desk office.[00:25:00]

that permits them to do the job, you know, more, more comfortably. Um, these are things that are not taking away any of the responsibilities of the job, but just permitting the person to do it. Or like we said, you know, someone who's having trouble with morning sickness. Making their schedule instead of keeping it from 9 a.

m. to 5 p. m. Maybe we say, all right, you can do 10 a. m. to 6 p. m. Right? We can change your schedule.

Mike: Brian, and I don't want to get too in the weeds on these, uh, edge cases, maybe, but how should an employer be thinking about that? Should they be thinking, okay, we were, we'll, we'll temporarily suspend our attendance policy because the, the, the business customers start walking in the door at X time, we can't.

We can't change the schedule. The schedule is what the schedule is, but we'll suspend the attendance policy. We won't write you up as being late. Uh, if you, if you happen to be late these days, how, how should an employer think about that?

Brian: Mike, I think you hit the nail [00:26:00] on the head and gave the perfect segue to the second type of accommodation where, and these are situations where Right? Like in that we're saying, well, even with that accommodation, you may not be performing all the essential job functions because it's essential for you to be on the retail floor, you know, when we open at nine, right?

Um, or, you know, various other things. And so there is a second rule under the PDF WFA where an employee cannot perform all the functions, essential functions of the job, even with a reasonable accommodation. Okay. the employee can still be qualified for an accommodation under the PWFA if their inability to perform that essential job function is only for a temporary period and that the essential job functions would be performed in the near future and that the inability to perform the essential job functions [00:27:00] can be, uh, reasonably accommodated, right?

So that's, that's a bunch in there, but the key thing here is that the PWFA permits as an accommodation, the removal, or even requires it the removal of an essential job function. And this is something brand new, right? The A DA does never requires that, right? The A DA says, right, you can be reasonably accommodated so that you can perform all the essential job functions.

Whereas now PWFA is saying for someone suffering a condition related or stemming from pregnancy, childbirth, that we can remove, the employer might be required to remove an essential function so that they can continue working and that will be considered a reasonable accommodation. Um,

Mike: That one's going to get tested in [00:28:00] the courts for sure. Isn't it?

Brian: yeah, yes. And I think, look, it's, yeah.

Mike: knows where the rails are on what, what is an essential function?

Brian: Right. And there's, so there's a lot here. And so number one, right, what does this tell us? That again, I think whenever we discuss reasonable accommodations, we always go back to the starting point is have an up to date job description for, you know, for each position. And, you know, there should always be somewhere near the top, the essential duties of the position, right?

Then you typically want to separate those out from other duties that might not be essential, right? So I think that's always a starting point for any employer here. You know, if you don't have up to date job descriptions, that's, that's, uh, you know, something that you should work on. Um, now, you know, I, I think with respect to this, uh, this accommodation issue where we can remove, where, you know, an employer is removing a essential function, right.[00:29:00]

The law talks a lot about temporary and, you know, being able to do it in the near future. Now, those aren't necessarily defined very well, um, you know, for a current pregnancy, right? So if someone's currently pregnant and an accommodation they need is the removal of a, uh, essential position, we're generally looking at, you know, 40 weeks or so from the start of the, uh, of the accommodation or, you know, suspending whatever that essential function is.

Um, but for conditions other than a current pregnancy, right? Because as we discussed, there are lots of situations when PWFA can be implicated where it's not a currently pregnant employee. Um, and so, you know, temporary and in near the future, that's, you know, not well defined. We're going to have to work through that, see what case law says, as you [00:30:00] suggested, Mike, as, you know, courts will help us define What temporary, you know, suspension of a job function really mean?

Mike: Yeah, have, I have weird use cases in my head. Maybe not weird, but I'm just, I'm, I'm, I'm putting my employer hat on here. I'm not trying to be in the spirit of this law. It's the spirit of the law is good. just imagining, and we, we still need to come back to what's the, the test for FTEs or full time equivalency to get to the 15 employees.

So how do we get there? But I'm just my, my wife's business. It's the hair salon business. The ratio is probably about 15 to one, uh, part time commissioned hairstylist to one front desk staff who wears many hats, including laundry, sweeping, and then checking guests in and out. You can't fractionalize that person's, the [00:31:00] essential person parts.

You can't fractionalize the essential parts of that person's job. You can't say you can only check guests in, but you can't check them out. Uh, because you can't reach up over the countertop to get their credit card to swipe. I mean,

Brian: Yep.

Mike: seems like you can get just ridiculous complex for an employer to, to create accommodations for.

Brian: yeah, it's going to be very fact specific and a case by case analysis. Um, I think what might help here, I actually, uh, jotted down a couple of the,

Mike: that example, Brian, I'm sorry, because you're big enough. You're over 15 employees that you must, you must, uh, comply with the law, but there might've been only one human being in the building that does that job and you can't, fractionalize it.

Brian: And so look, there's, there's always going to be the undue burden analysis and we'll, we'll get there later. And that might, might dictate what occurs. Thank you. Um, [00:32:00] but I think what the, uh, what the PWFA envisions is that, yes, for some temporary period of time, other employees at the company will need to pitch in to cover those other duties, right?

And so while that might be burdensome, um, right in that example, is there another employee, is there a stylist who could, you know, every time someone needs to check out? One of the five stylists on duty comes over and checks them out. That might be an inconvenience, but is it an undue burden? Right. So there, there's no doubt that some of these, uh, you know, accommodations might, you know, quote unquote, inconvenience the employer, but again, right.

If it can be done so in a reasonable manner, um, yeah, I'll give you a couple of examples. The EEOC, uh, final regulations, uh, you know, They're online, or their final rules, uh, I [00:33:00] think it's a couple hundred pages. If anyone needs, uh, some good nighttime reading to get to bed, uh, or they're very interested in all that the EOC has to say on this, take a read through those, but, uh, it'll help you get to sleep at night for sure.

Um, but yeah, one of their examples is, uh, Elena is a park ranger, and she has an essential function of patrolling the park. She also answers questions, sells merchandise, explains maps. Due to her postpartum depression, uh, Alaina is experiencing inability to sleep, severe anxiety, and fatigue, and she's on antidepressant medication that causes dizziness and blurred vision, making it difficult to drive.

So she asked for a temporary suspension of the essential function of patrolling the park. for 12 weeks. And so what does the EOC? Yes, the EOC says yes, she's qualified, she's communicated a known limitation, [00:34:00] and presumably those patrolling duties will be assigned to other rangers. And so, right, and if we were talking about the ADA, we wouldn't have an accommodation because she can't perform the essential functions of the job, right?

Mike: Got it. Yeah, that's

Brian: right under the ADA we'd be saying she still needs to drive. How can we accommodate her to drive and patrol? She can't. And so under ADA, right, You know, five years ago we'd say, all right, Elena, you can go on leave for 12 weeks, right? But here the PWFA says, no, Elena, you can work. The employer should remove those, that essential function.

You do everything else. And look, what it says, you can put, you know, you can fill in additional duties, right? It's not saying she needs to work a half day. There's, you know, other administrative work, other stuff that she can pitch in and do. during the time that, you know, she would have been patrolling the park.

Um, you know, another [00:35:00] example is, you know, oftentimes, uh, companies have light duty programs, right? But the employee who's pregnant or dealing with one of these conditions might not be in one of the positions that's subject to light duty, uh, light duty program, but, you know, for instance, if you have a delivery driver who's, uh, pregnant and, you know, her medical provider says you shouldn't be lifting more than 30 pounds.

Then, you know, if that company has a light duty program for employees who have on the job injuries, then even though this pregnant employee didn't have an on the job injury and wouldn't qualify for it that way, that the company might, may need to open up its light duty program for this employee because she can't go out and do deliveries because it's going to involve lifting of more than 30 pounds.

Mike: sure.

Brian: So, you know, there are lots of examples like this, but I think the key is, um, and almost even more so than our ADA, [00:36:00] uh, you know, accommodations, is that you can see this really involves the interactive process and discussing, you know, what can be done and what, you know, might need to be removed from, uh, from the position.

Um, but, you know, I think the EEOC, again, for employers here who are concerned that this could burden their business, right, if you fall on the low end, closer to the 15 employees, This is going to be harder for you than if you're a bigger company, you know, on the higher end, right? Where you have hundreds of employees and you know cross training employees is easier and there's more

Mike: It would seem that the, obviously the bigger the employer, the more employees per say location, uh, and perhaps maybe the more white collar in nature, the jobs easier to accommodate. If you're, if you're barely in this borderline, you, that [00:37:00] you, that you, uh, you must comply, you hit this 15 employee test. And if you're geographically dispersed or you have very unique, uh, one of a kind jobs for different individuals, this could be very difficult.

Is

Brian: the key is Mike that the EOC does still tell us that there's an undue burden analysis So if suspending Uh, essential job functions would create an undue hardship, then it doesn't need to be accommodated. But, you know, that said, it is always the employer's burden to show, you know, that undue hardship.

Um, and so I think

Mike: this a good time to pivot to that? Cause that, cause I,

Brian: absolutely.

Mike: so, so let's just talk about what is required. Um, what documentation prop, it might not be acquired by law, but what would be, what would be a best practice for employers of say, Hey, I just can't do this. I would have to hire another person. And I can't afford to [00:38:00] do that.

Uh, do employers need to do? What kind of documentation should they have as a best practice in case there is ever an EEOC inquiry?

Brian: there, there are two, there, there are two slightly different analyses here, but documentation is key as you discussed. So, If an employee can perform all the essential job functions, then the undue analysis, undue hardship analysis is the very same as under the ADA, which generally means a significant difficulty or expense for the employer's operation.

Um, and you know, you're going to look at the nature and cost of the accommodation as well as the financial resources of the company. And just the general operations, right? So even if you're a small company and you have 15 employees, if, if you're making money, uh, head over heels and the, you know, the, they might say, well, [00:39:00] you, you have the financial ability to accommodate this.

And as compared to, you know, a 15 per, you know, employee, you know, restaurant that's, you know, skating by week to week and, you know, might not have the same financial resources. So that can always be considered. But when we get into the removal, the temporary removal, of a essential job function. Uh, the EEOC has identified several other factors.

And so I think again that the factors I mentioned a minute ago, the cost of the accommodation, the resources, and how it impacts the operations, you know, you should consider those. You should document, right? Even if it's just jotting a memo to the file, right? Because Number one, you know, you might know why you denied the accommodation now, but in two years when the employee sues, you know, what are you going to have to go back and look at?

It's just going to be your memory. So

Mike: And for all, and for all the employers listening today, [00:40:00] Who've never, uh, been interrogated or cross examined, uh, or maybe not, maybe not, it's not like a Perry Mason in a, in a, in a courtroom. Uh, but just in a deposition, uh, when you're being asked tough questions, simple stuff like extemporaneous notes in your notebook counts, right?

Would it be better to have a spreadsheet that detailed everything out and the all parties signed? Well, of course it would. But, but your memory is not nearly the same as having extemporaneous notes written down with a, with a date to say, Oh yeah, they, they, they didn't, they, and it's how many pages back and a different color ink.

It's like pretty hard to fake that. That's, that seems reasonable that that was the reason that, uh, that they gave. So I would just encourage folks, man, uh, you're, you're 15 employees. You don't have an HR person probably yet. You, you may be [00:41:00] an office manager. If you're 15 employees, you might be, you might be the, the mechanic, the office manager, the payroll clerk, the, the, I mean, as a business owner, you, you wear all the hats at minimum.

Take notes throughout the day. And so you have a whole bunch of, whole bunch of these books that just stack up on your shelf that you can always go back to if you had to.

Brian: Exactly. And look, when we're considering that undue, uh, you know, hardship for these, uh, these employees, when we're removing the functions, you know, I think it's somewhat evident, but right. In addition to the other factors, We're looking at the length of time they'll be unable to perform the function, whether there's work for that employee to accomplish by transferring them to another position or having them do other functions.

Um, you know, and look, whether the company has other employees or [00:42:00] a temp employee or a third party, uh, could be retained to perform, uh, the essential functions that are, uh, no form. So again, right in this situation, you mentioned Mike, when there's. you know, only one person who does this role, at a company and, there's no one else who could possibly do it.

And maybe for whatever reason, you can't just hire someone to come in and do this. You know, that might dictate, something different. but again, right, that, that wouldn't mean, that, that they don't get any accommodation, right? It would mean that maybe the accommodation of leave as a last resort is, what should be given.

but not that no accommodation at all, would be appropriate. and so I think that covers, I mean, look, that, that covers undue hardship. I think [00:43:00] it's certainly good for employers to know that concept is out there, that if you feel this is really burdensome on your company, that there may be, you know, that to look into.

But I think like, you know, for employers, You should almost be looking at it the opposite way, right? You should be looking at it, what can I do? How, you know, is there any way that I can keep this employee working while they deal with whatever this condition is? And that's what the PWFA is, is telling us.

And so I think that understanding that that's the intent of the law, that if you are going to claim an undue hardship, just understand it's going to be scrutinized. under this context of, you know, well, why couldn't you? It's only temporary. And, you know, and so again, um, consider that when you're, when you're making that undue, uh, hardship, um, [00:44:00] inward.

Mike: Yeah, very good. Let's come back to the thing that I've alluded to maybe a half dozen times. 15 employees. Uh, the Affordable Care Act. You have to have more than 50 employees, but there's a very specific test to that. Um, uh, COBRA. More than 20 employees, uh, before you must comply with COBRA. There's a very specific test for that and it's different than how you calculate FTE for ACA.

So there's all these HR laws. But some of them, you know, OSHA, you can't, you can't not have a safe work environment. You gotta, you gotta do that no matter how big your workforce is. But some laws, different size employees, but there's different tests to how you count these employees. So what, what is the math?

How does the math work to get to 15 employees? Is it, is it 15 W 2s in the year? Is it 15 active, regardless how many hours they work? [00:45:00] Take us through that.

Brian: Right. So the way that, and look, my understanding is that the accounting is the same as under the ADA. And so if your company had 15 employees Uh, in, you know, employed in at least 20 calendar months, uh, you know, then, then you should be, uh, you know, required to, uh, to comply. Um, but

Mike: so even if they're part time.

Brian: yeah, an employee is going to be an employee under this.

So right, unlike maybe, uh, under, right, healthcare, right, when we're looking at, you know, the Affordable Care Act. You know, we're, we're not looking at, you know, part times and, uh, and others differently, right? So,

Mike: When you say 20 calendar months, that sounds math y. Is it a cumulative

Brian: right.

Mike: months across those employees, or?

Brian: [00:46:00] So you're gonna look at payroll for the current or preceding year. So if in the current year or the preceding calendar year, the company's had 20 employees, or not 20, uh, 15 employees, in 20 of those, uh, you know, calendar weeks, then you're going to be, uh, subject to the ADA and the PWFA.

Mike: And

Brian: So I think it's, uh, there can always be, you know, some complications here, but it's a little simpler than I think some of our other statutes like FMLA, which also has, you know, a geographic element.

Uh, then the, uh, Affordable Care Act, which, you know, has, you know, other, other issues and now we count where we're talking about full time equivalents. Luckily here, we're not talking full time equivalents and generally this can be determined by going back and [00:47:00] looking at payroll. Um, I mean, look, they're often, you know, uh, state or federal, uh, You know, payroll filings too that often, you know, list every employee, uh, sometimes that's done quarterly, not monthly, but that can be another way to look at it.

Um, but yeah, this is generally going to be done by reference to payroll, uh, to determine if you're going to be subject to this law.

Mike: And Brian, am I thinking about this the right way? There's all kinds of technicality that would say, Hey. If you're growing your 14 employees and then your 15 employees. And so if you hit 15 employee number 15 and say December versus February, maybe your annual would say you don't have to comply, blah, blah, blah.

Just err on the side of compliance here. If, if, if you have 15 employees, the day you hire number 15, even if they only work five hours a week, you have 15 employees, err on the side of compliance [00:48:00] and comply with this law.

Brian: 100 percent agree with you, Mike. Um, number, you know, and I think for an additional reason too, that there are many states and local jurisdictions. that are, you know, that have and are in the process. of imposing, uh, similar or slightly different requirements, uh, to accommodate, uh, pregnant women. So I think that's number one, you know, look at local laws, there might be something that says less than 15 employees and has similar requirements.

But again, right, I think I'll just point out that when I'm dealing with, you know, as a litigator, right, when I'm Defending any case. The cases that I think are the worst for employers to defend are pregnancy discrimination cases. Um, they are the most difficult because it is just something that, um, you know, it goes up there with [00:49:00] disabilities, right?

That no one, you know, wants to, I mean, look, no one wants to see discrimination on any protected basis, but seeing a pregnant woman discriminated against or not accommodated. is just a very objectionable thing to see. Um, and so I, I think there's that component of it that, you know, might just be in the back of our minds, in the back of a judge's mind, jury's mind.

So, you know, consider that, that we're, you know, we're, we're dealing with this. And while, while we're on the topic of this deals with pregnant women, I think it's important to point out that the PWFA Only applies to pregnant women. It does not apply to the male spouse of a pregnant woman or, you know. It's only the individual dealing with this condition or limitation, right?

So that's only the, a pregnant woman or, you know, someone dealing with these issues. Um, and it's the employee themselves. It's not, you [00:50:00] know, I could be, I could have my wife be dealing with these issues. That doesn't mean my employer needs to accommodate me under the PWFA. It's only for the person experiencing those issues.

Mike: Got it. Yeah.

Brian: Um, but, uh, you know, and look, there's some other aspects to this too. And I think as we, you know, mentioned that the EEOC, I think they envision almost a streamlined process in some regards. Uh, because Unlike the ADA, there's not going to be that prerequisite of, you know, is this a disability, right?

So again, it gets rid of, in many cases, the idea of going to the medical provider for documentation, right? If the employee is saying, I'm, you know, I'm uncomfortable in this chair because of, you know, my, I'm pregnant and this chair doesn't work [00:51:00] for me, You know, we can see that the person's pregnant, right, and we, we don't need a doctor's note because it's not a disability, right?

It's just a condition and, uh, you know, the EEOC gives a good example that, um, you might even need to accommodate pain, right? So, uh, there's a pregnant, uh, woman who's an admin assistant. And she normally drives to, uh, to the office using public, uh, transportation. Due to her, uh, pregnancy, she's developed sciatica.

Commuting is painful because it requires her to sit or stand for long periods. So she asked for an accommodation of teleworking, uh, or changing the start and end times of her workday to be at less crowded times when the commute time would be, you know, much less. And so this would be something that would need to be accommodated under the PWFA.

And again, it's, it's a pain. It's an, it's [00:52:00] almost right. So it's something, it's sciatica, right? A condition, but remember, like these are things that can fall far less than a disability. Um, and so again, I just wanted to point that out that like a health risk. or pain is also something we're accommodating because it's any limitation, any condition stemming from pregnancy, childbirth, or related medical conditions.

So, uh, I think Employers need to think, you know, bigger in scope here than smaller in scope. And again, it's hard, you know, since the act was just passed, uh, you know, the final rules came out, uh, in June of this year, you know, as you mentioned, we haven't seen litigation over this yet. We're not seeing, you know, how, you know, the scope as defined by the courts.

So, I think for right now, employers should really understand that this is broad in scope and any issue that a pregnant, uh, or someone dealing with [00:53:00] pregnancy related issues brings to me is likely something I need to accommodate. Even if it's, you know, as small as, like we said, like, you know, um, just needing a little break time for lactation or, or things like that.

Look, on lactation, I think it's important to mention that it goes actually beyond the recent PUMP Act, um, which was passed, I think, uh, was it last year, the PUMP Act, which, uh, provided, you know, the PUMP Act for nursing mothers last year, uh, obligated employers to provide a place to express milk. Uh, shielded from public view and intrusion from coworkers, right?

That was the limit to it, but the EEOC here in the final rules with respect to the PWFA, it goes beyond that. Um, and it says that, you know, um, other accommodations might be needed, uh, you know, space to pump that's [00:54:00] in proximity to running water. Uh, refrigeration for storing the milk. Um, and, and the, the PWA actually adds something very interesting that may not impact most employers, but it seemingly provides a requirement to accommodate pregnant or nursing mothers, not pregnant mothers, but nursing, nursing mothers to nurse during the work, work hour.

Um, and the idea here is that. But it talks about in proximity to, uh, to the employees. So basically what it's saying is. If you're an employer that, say, that has a daycare, right, on premises, then the nursing mother may then have a right to take breaks to nurse that child, right, during the day. Whereas everything else is about expressing milk, right, this would be actually nursing.[00:55:00]

The Act, and again, as we read the Act, we're not reading it to imply a right that an employee has It's a right to leave work, drive home half an hour, nurse their child, then drive back. It seems that this is only required in situations where it's in close proximity, which we take to mean, you know, generally when an employer has that type of daycare arrangement.

And if so, if they're on the work, the child's on the work site, then there could be an obligation to allow that nursing mother to nurse the child throughout the day.

Mike: do my recap and I'll ask you to give a last word and just some general guidance here. So I think, uh, for the smallest of employers, this doesn't apply to you yet. Um, there's a federal law, not a state law. So if you have 15 or more employees, it doesn't matter if they're part time, doesn't matter how few hours they work.

If you have 15 or more employees, you, you [00:56:00] must comply with this law. It doesn't matter where you live, what industry you're in. Um, it's an evolution of the Americans with Disabilities Act, the ADA, uh, that does more than simply requiring accommodations. Because technically being pregnant wasn't a disability under a DA.

And so now, now there's an umbrella law, uh, the Pregnancy Worker Fairness Act, the P-W-W-F-A, that does cover pregnancy, but it adds a bunch of additional, I guess, benefits to the employee. And maybe he even hate to say this, but I think it's true burdens. To the employer. And I don't, I don't want to say burden is that as we're pulling the law and that the intent isn't good, uh, but it's, it's more that the employer must know and must comply with in an area that I think is just unknown and kind of hard to [00:57:00] follow.

So a couple of the key differences, um, they have to provide accommodations for no limitations. This doesn't mean you should be seeking out, asking employees, Hey, are you pregnant? Right? Right. You don't want to get into the sexual harassment, uh, uh, area, but if once you become aware of someone being pregnant, Especially if you become aware that there's a need for accommodation, that's when you have to act.

But it seems reasonable. Once you're aware that an employee is pregnant, regardless of how you found out, you should approach that person and ask, Hey, congratulations. Is there any accommodations that, you know, we can make to make your job easier for you? My sense is that's already happening 90 plus percent of the time.

Um, in a world of, I think we finally have bumped back up over 4 percent unemployment, but the, the, the war for talent is, is here to stay for a very long time. There are more jobs than there are people and [00:58:00] employers have to treat their employees with some respect and accommodation. Otherwise you're simply not going to have anybody to work for you.

That's, this isn't 1920s. Upton Sinclair, where you could not pay overtime and abuse employees and they would come to work anyway, because I didn't have any choice. so the scales have tipped on labor supply and demand perhaps. but there are very specific accommodations you need to be able to make, and they need to be the known limitations.

You don't have to play doctor here. If the employee says, Hey, I have a limitation of X, Y, or Z. You know, I have morning sickness or I can't lift, more than X number of pounds, or I'm going to, I can't be on my feet quite as long, whatever those known limitations are, you need to, provide for those.

And then maybe the last thing is, this is, I just, I'm certain this is going to be tested in courts. It's the, it harder for an employer to comply with in the, uh, Americans with Disabilities Act, it's of, Hey, [00:59:00] if your disability prevents you. from doing this core job, regardless of, no matter, there is no accommodation I could give you that would allow you to perform the job.

Then you can go on leave or not work here. Uh, but in this case, in the, in the PWFA, the law says you need to be able to split up the essential components to someone's job. And guarantee this is going to be tested in courts because there are going to be some. employers in this 15 and 20 employer range that have some employees that their job is so unique aspects of the are essential and can't be shared because of geography or training, certification, knowledge, whatever the case may be.

Um, it will, it's going to put a burden on employers. So I'd say get ahead of it. The very best thing you could possibly do to get [01:00:00] ahead of it is just to have a good relationship with your employees, employees who know you care. Know you respect them and you're doing your best will give you a whole lot of latitude compared to that employee who might lose in court, but if they think you're a greedy old capitalist bastard, just trying to take advantage of them.

then you're a hell of a lot more susceptible to being sued or getting a call to the EOC and you're subject to an audit. All kinds of bad things happen when you don't have good relationships with your employees. So I'd say the starting point is great relationship with your employees from a position of trust and respect and do your best navigating what I think are pretty complex waters.

That's probably a longer rant than I anticipated, but this, this is a, this is a big thing for employers to

Brian: It is. Yeah, it is. It's a, it's a sea change for these types of issues for pregnancy related issues. And so look, I think where I would leave employers is one, you know, you [01:01:00] can start with your default ADA, uh, you know, framework and dealing with these, but remember there are differences in how you deal with this.

Right. And one main one is the difference in documentation, right? The EEOC envisions. this being, you know, very minimal documentation, right? Because we're not asking typically about the health condition or the limitation. So we're really only asking for medical documents when the limitation or condition is not obvious.

and that the extent of the needed accommodation isn't obvious. Uh, but, you know, in a situation where we have something that's very obvious, right? Someone who's pregnant and showing and saying they need, in our instance, you know, a chair, a different chair, that's very clear, right? You're not going to ask for documentation.

Um, and look, I think, The, you know, keep going with the, uh, the interactive [01:02:00] process. I think that is always key because again, these aren't always going to come up with the employee asking for something. It might just be them expressing a difficulty they're having with some condition. And so talk through that, try to identify ways that this can work.

And as Mike suggested, the removal of essential functions, probably the biggest change in all of this, um, Again, that's something that's here to stay as far as we know. Again, you have the out of an undue burden, but again, it really must be undue. And so you, uh, you really have to look into that. Um, but the idea here is if the company is capable, it will allow this person with these, you know, pregnancy related conditions to continue working.

And that's, that's the goal of the PWFA. That's the EOC's goal. And so again, with that context, that's how it's going to likely be applied. But. Look, what I would say is stay [01:03:00] tuned, take steps to comply. Uh, the first few years of any new law, uh, that's in effect, you know, the courts and agencies are going to create the scope and interpretation.

So, you know, this is really a story in process and, you know, we may see. You know, limits or additional, uh, you know, employer obligations. But the idea is now you know about this, don't ignore it. Um, and understand, you know, your obligations under it to accommodate, uh, pregnant employees and those dealing with pregnancy related issues.

Mike: You don't mind. We talk about the purpose of the shows to help businesses grow. When you're a growing business, your charts generally go up into the right revenue profit. Those are the good things. That's what, that's what everybody starts a business for. Uh, but locations, number of employees, Both those things mean additional laws that you must comply with.

And so as you go up into the right in your business, things get more and more complex. So, uh, Brian, thank you for all the [01:04:00] information today. And thank everyone else for joining, uh, in allowing us to be part of your mission to grow until next week.