Thursday, January 5, 2023

While I was away, Congress pumped life into workplace rights of pregnant employees and new moms

Two laws — the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act — took effect when President Biden signed the Consolidated Appropriations Act just before Christmas.

The Pregnant Workers Fairness Act prohibits employment practices that discriminate against making reasonable accommodations for qualified employees (those who can perform the essential functions of the job with or without reasonable accommodation) affected by pregnancy, childbirth, or related medical conditions.

Specifically, it makes it illegal for an employer to:

  • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
  • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
  • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
  • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
  • take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

In other words, it basically requires that employers treat employees affected by pregnancy, childbirth, or related medical conditions no differently than a disabled employee needing a reasonable accommodation.

The PUMP Act extends to all employees the same lactation break rights the Affordable Care Act provided to non-exempt employees. It also requires that employers treat time spent expressing milk as hours worked if the employee is also working during that time. The bill also extends from one year to two years the available time period for such accommodations.

While I fully support employees having the rights that these laws grant them, I question whether these laws are necessary, since Title VII, as I read it, already imposes these requirements

The Pregnancy Discrimination Act requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties. Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees' medical issues or injuries, the PDA already requires you to accommodate your employees' pregnancies.

Similarly, Title VII has always protected lactation discrimination as discrimination because of pregnancy or pregnancy-related conditions. Unless there is some bizarro employer out there that does not permit employees to take short breaks during the day for any reason, any employer that punishes a woman for lactating already will be violating Title VII.

Thus, while I support the protections these laws provide, I oppose them as laws because they are redundant of rights that existing laws already grant. Don't treat pregnant employees or employees who are new moms differently than any other employee. It's just that simple.