Monday, August 14, 2023

Pregnant Workers Fairness Act and pregnancy loss

Missy, a newly hired server in the taproom of a brewery, suffers a miscarriage and asks her manager for ten days of leave to recover. As a new employee, Missy has not yet accrued any paid leave. The employer is too small to be covered by the FMLA and does not have a policy providing any unpaid leave.

Must the brewery grant Missy her requested ten days of post-miscarriage leave?

Historically, the answer could have been no.

History changed, however, with the passage of the federal Pregnant Workers Fairness Act, which requires employers with 15 or more employees to provide "reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee."

The EEOC recently release proposed regulations interpreting the PWFA, which specifically address Missy's scenario and require the brewery to grant her request for 10 days of unpaid leave.

1./ Missy's need to recover from the miscarriage is a physical or mental condition related to pregnancy or arising out of a medical condition related to pregnancy;

2./ Missy needs a change at work because of her miscarriage, which she communicated to her employer; and

3./ Missy is a "qualified employee" because she will be able to perform the essential functions of the position with or without reasonable accommodation after the accommodation of unpaid leave expires.

Therefore, the employer must grant the accommodation of unpaid leave (absent an undue hardship, which ten days of shift-coverage will not meet).

If you or a loved one has ever suffered the trauma of a pregnancy loss, you know how physically challenging and emotionally devastating it can be. I'm beyond pleased that the law has caught up the needs of these employees by recognizing that employees aren't just fungible assets of your business, but are also human beings that should be treated as such.