In this episode of Create Brand NV, host Nicole Alicea welcomes back employment law attorney Charlotte Fernee Kelly for an insightful discussion on women’s rights in the workplace, particularly surrounding pregnancy and lactation. Charlotte sheds light on critical laws like the Pregnancy Discrimination Act, Pregnant Workers' Fairness Act (PWFA), and the Pump Act, offering guidance on how these laws overlap and the accommodations employers must provide. Learn how to navigate complex workplace scenarios, ensure compliance, and protect your rights as an employee or employer. This episode is a must-listen for those seeking to understand the legal landscape of pregnancy-related workplace issues and how to foster a supportive and compliant work environment.

Keywords: Pregnancy Discrimination Act, Pregnant Workers' Fairness Act, PWFA, Pump Act, workplace accommodations, employment law, women’s rights, lactation rights, employee rights, FMLA, ADA, employer compliance, pregnancy-related laws, workplace discrimination, Florida employment law.

Announcer: Coming to you from the Sunshine State, this is Create Brand NV, a podcast dedicated to entrepreneurs and business owners, discussing business, marketing, leadership, and best practices in this ever-changing business landscape. Every week, we'll introduce you to a different business leader who has taken their company to new heights despite the odds. Learn, engage, and thrive. This is Create Brand NV! And now, your host, president and CEO of Create Brand NV, Nicole Alicea!

Nicole Alicea: I am so pleased to have Charlotte Fernee Kelly back on the show with us. If you recall, she was one of my very first guests on the podcast. She’s the founding attorney of Fernee Kelly Law. Charlotte is an employment law attorney in Florida, and she helps people overcome work-related conflicts to get their lives and livelihoods back on track. Today, we’re discussing a very niche yet widely relatable subject, something very dear to my heart, which is women’s issues in the workplace, particularly those related to working, becoming pregnant, and lactating, and the laws that protect our rights.

Now, on to today's interview. Charlotte, thank you so much for coming out and meeting with me today and being willing to talk to us and help shed some clarity on these topics that are so important. They are a natural human part of life, yet I don't think we talk enough about them. I think there’s a lack of information on the employer side in terms of the acts, laws, and regulations that employers need to be aware of to remain compliant. But also, there’s, I think, a lack of awareness in us, regular working folk, understanding what our rights are, what laws and acts exist to protect us, how they overlap, and just everything that you’re so kind to come out and inform us about. What is it that you’re doing?

Charlotte Kelly: Right, this is not legal advice. This is for informational purposes only. And for certain employers, some of these acts might not even apply due to the number of employees involved or the employees' longevity of employment at that job, so this is just speaking generally about these different acts.

Nicole Alicea: And of course, if you want more information and you want to consult with Charlotte, reach out to her at FloridaEmploymentLawAttorney.com. Women haven't actually been working that long if you really look at it in the context of 100 years. Well, the beginning of time, but even if you just look at the last 100 years, we haven’t really... Yeah, exactly. Since the beginning of time, if you look at it, we’ve really only been... Can you tell me more about that in terms of, like, just catching us up historically on when women were really kind of allowed to work? You told me something that, as an 80s baby, is like foreign to me, but when I researched it more, I learned that women weren’t allowed to even have a credit card without a co-signer. It sounds like we were almost like pets.

Charlotte Kelly: Well, people kept trying to use the Americans with Disabilities Act to accommodate pregnancy, but it just doesn't legally work that way because, by definition, a disability under the Americans with Disabilities Act needs to be something that lasts for at least a year, and pregnancy does not last for a year. Also, people use the FMLA for pregnancy-related leave, like maternity leave or leave for doctor's appointments. But the FMLA, for one thing, is unpaid, and it doesn’t cover a lot of employers because it’s for employers that have 55 employees within 75 miles, and the employees must be employed for at least a year before they qualify for the leave. So it leaves many employees out in the cold. There needed to be legislation to fill that gap.

Nicole Alicea: So, it finally got passed. And what is the Pregnant Workers' Fairness Act?

Charlotte Kelly: Well, like I said, it's the act that protects accommodations for pregnant employees. So workplace accommodations like leave—that's the easiest and most obvious one—but also the ability to have snacks at work, the ability to have light duty job duties, to take bathroom breaks more frequently, to have a chair or stool for performing job duties, the ability to work remotely when other employees might not be able to, and scheduling flexibilities for doctor's appointments or just time off or coming in late when there's morning sickness—things like that.

Nicole Alicea: As an employer, I mean, there's always the concern of somebody abusing or, you know, it definitely puts the employer in a bit of a hardship when the pregnant worker has to go to multiple doctors, especially if they end up with a high-risk pregnancy. Does the employer have to allow every single request for special accommodations?

Charlotte Kelly: There is a balancing act, of course. Generally speaking, the Pregnant Workers' Fairness Act provides these legal protections. And importantly, the Pregnant Workers' Fairness Act is overseen, administered, and enforced by the Equal Employment Opportunity Commission. It's not to be confused with the Pump Act, which is all about protecting the ability to pump breast milk while at work. That act is administered and enforced by the Department of Labor.

Nicole Alicea: So there are all these different departments responsible for all these different acts. To a layperson, including me—and I've been sitting with this material for about a week—it’s confusing and overwhelming. Can you help streamline and simplify all of these different laws and how they overlap?

Charlotte Kelly: Well, sure. The Pump Act is specific about pumping breast milk and basically says employers must provide a private space that has an outlet, a chair, is not a bathroom, and provides breaks for pumping breast milk. That was implemented around the same time as the Pregnant Workers' Fairness Act. They came out at approximately the same time.

Nicole Alicea: Yeah, and I heard my mom tell me stories about how she had to go to the bathroom to pump breast milk. Maria mentioned that she has a relative who is a teacher, and every time she went to pump, they had to call in a substitute teacher to watch over the kids while she went and pumped. I have an office furniture client, and every time there's any discussion about the mother's room or nursing room, everyone always says, "Oh, it's just a closet," which is fine, right, as long as it has an outlet and a table. If I'm an employer and I'm outfitting a room to be appropriate for that, what is the checklist I need? It cannot be a bathroom. It can be a closet, but it needs to have a chair, an outlet, and a door with a lock on it so that someone cannot come in and interrupt while that person is pumping, which is, you know, exposing them—it's a private thing. Windows, no windows, it just needs to be able to be covered. And that's it.

Charlotte Kelly: So they have to provide that. And that is for employers with how many employees? Actually, come to think of it, the Pump Act does not have an employee number requirement. It’s something that falls under the Fair Labor Standards Act. So if an employer is required to comply with the Fair Labor Standards Act, which covers overtime and minimum wage, then they also have to comply with the Pump Act. But what's interesting is that, for example, we are in the city of Tampa, Hillsborough County. We have our own human rights ordinances for the county and the city, and they protect pregnancy and disability. So even if an employer cannot or does not have to comply with the Americans with Disabilities Act or the Pregnant Workers' Fairness Act or the Pump Act, they might still need to comply with their local ordinance.

Nicole Alicea: This sounds very complex and layered.

Charlotte Kelly: Right, there are these layers of overlapping laws. So it is important to know what you need to comply with and also what your rights are—for both employees and employers. Because employers are trying to run a business, and it's not convenient to employ someone who needs all this time off and needs to be able to come and go and has these special considerations. It's not convenient; it can be a hassle and an impediment to making money. But it's part of the human experience. It's part of having employees. And it's part of building a relationship and rapport with an employee. This is long-term employment, and once they're done with their leave, they will come back and work full-time like normal. You've now seen them through this piece of the human experience and have maintained their employment and retained them through this more difficult time in their life. So it is just part of the human experience and part of building that rapport with an employee and their loyalty to the employer.

Nicole Alicea: Yeah. I think if you're trying to build a holistic company that is guided by vision, mission, and core values, being compliant with this fits beautifully into having that long-term relationship with employees. Fingers told me a story just a minute ago about someone he knew who got pregnant, went on maternity leave, came back for one day, and then never returned. It makes you think of abuse of the system. But also, that mother could have quite legitimately come back and realized, "I want to be with my child. I don't want to be here at work." I don't think that 12-13 weeks is nearly enough. From an employer standpoint, is there anything they should be doing to protect themselves against abuse?

Charlotte Kelly: Well, it's not disallowed to ask for doctor's notes for certain things, but you don't want to necessarily ask for a doctor's note for every little thing. You don't want to put your employee on guard, making them paranoid that they're being disbelieved. But if there is a legitimate concern that the employee is exploiting the situation or taking advantage of the situation to the business's detriment, then it’s perfectly legitimate to request some kind of verification.

Nicole Alicea: The U.S. birthrate has been on a downward trend for several decades now. Do you think it's because of how challenging it can be to balance working, having a career, and being a mom?

Charlotte Kelly: Well, I’m sure it's multifaceted and there are different reasons for different people. The cost of childcare is an issue. When does it become no longer beneficial to work when childcare is so expensive? It’s not just one answer or something to blame on the employer or the employee. But as we were discussing previously, the U.S. is the only major country that does not have maternity leave.

Nicole Alicea: Like mandated nationally. It's up to each employer to decide what benefits they're going to offer their employees should they get pregnant.

Charlotte Kelly: Right. The closest thing we have is the Family Medical Leave Act (FMLA). But like I said earlier, it's unpaid, and it only applies to employers that have 50 or more employees within 75 miles.

Nicole Alicea: I've had the privilege of not having to deal with any of this because I've been self-employed, so I have no context. But I've heard from other people that they have to scrounge up, you know, mix and match their vacation and unpaid time off to kind of make up a maternity leave. How does that work, and are there any laws that protect or help us?

Charlotte Kelly: Something that I've advised employers in the past when they were trying to address this situation is to look into a short-term disability insurance policy for their employees, like Aflac. If that employee signs up for the short-term disability policy before they become pregnant, before they find out they're pregnant, then they can qualify for a certain amount of paid maternity leave because pregnancy does fall under short-term disability for the purposes of those policies.

Nicole Alicea: So that's one way to address the situation and to have some kind of work-related maternity leave. What other ways do people scrounge up time off?

Charlotte Kelly: They piece together their PTO, their sick leave, and their FMLA if they qualify for it. It is a patchwork, and it varies based on the employer. I think I shared with you about a job that I had where a legal assistant was hired, and days later, the boss found out that she was pregnant. She wasn't showing yet, but she let him know that she was going to have doctor's appointments and would need to be out. He felt deceived and basically told us that he would not have hired her if he had known she was pregnant. Every time I saw her, she was getting bigger, and then she eventually went out to have her baby. She went out for exactly 10 PTO days, which is all she had accrued during the time she was employed, and then she was right back to work.

Nicole Alicea: So there are two things there that I want to talk about. Number one, disclosing whether or not you're pregnant. Believe it or not, I had someone I hired who then disclosed to me that she was pregnant. And then that ethical question lingers—should she have told me? Would it have made a difference? And based on our conversations, because we've talked about people with bipolar disorder, people with other types of mental health conditions, it's like, you know, I think whether you're pregnant or have a mental health condition is really not the employer's business. So that's not something for them to disclose, right? What would be your guidance on that?

Charlotte Kelly: There's no need to provide the actual diagnosis to the employer if it's not necessary for the request of the accommodation. Like we discussed, you can say something like, "I'm going through some medical things right now," or "I am addressing a health condition that I have, and I need to request an accommodation. Therefore, I need XYZ. Can we do this?" It has to be an interactive discussion between the employee and the employer, rather than just demands made of the employer or the employer just saying, "Nope." They must engage in the interactive exchange.

Nicole Alicea: So do you think in that case, when she got hired, she should have asked for a special accommodation in some way?

Charlotte Kelly: Yes. It really comes down to being a judgment call on the part of that employee or prospective employee who's being interviewed. When I have employee clients who are out there interviewing for jobs while they're pregnant, I generally advise them not to disclose their pregnancy. I've had some clients come to me saying, "Hey, just looking at me, I am disclosing my pregnancy. There's no way for them to not know that I'm pregnant, but they hired me anyway with the idea that they know they’re going to be giving me work-related accommodations and then I’m coming back to be loyal to my employer." It depends on the type of workplace it is, how much you need that job, and if you're willing to work for an employer who would fire somebody for being pregnant or would not hire somebody if they’re pregnant. So it really comes down to the individual situation.

Nicole Alicea: And then on the tail end of that story, this woman coming back to work 10 days later—which is insane in my mind. As a mother of a five-year-old, I don't have a baby anymore, but I do recall those bonding times. We got kind of swept up in the pandemic, so I spent a lot more time with her than I initially planned. But I can tell you that when the 12-week mark rolled around, I remember thinking, "I can't imagine leaving her with someone so that I could go to work." Pumping, which we talked about over the phone— in order to pump successfully, you need to relax. It's hard to relax if you're stressed out at work. Obviously, it depends on how well you pull that off. I've shared before on the show that I breastfed my daughter for three years. That’s because I worked from home and then got stuck with the pandemic, so it just made it very... We weren't going anywhere, so I was just at home all the time. But for a working mother who has to juggle the daily demands of work, which is hard in itself, caring for an infant, having all of the breastfeeding equipment, going to work, taking scheduled breaks to pump... You have to drink more water, you have to up your nutrition. It's not easy. It is... it is... it's a shit show. I can say shit show. It's pretty intense. And I think that's why not a lot of women can keep up because it's just a lot. And then they choose to bottle-feed. But that's a whole other story.

How would you rate this GPT so far?

Charlotte Kelly: It's a hectic time for a lot of women and also a very emotional time for many who feel that they are leaving their baby when the baby is still so young. Twelve weeks is still very young, and it can be crushing for quite a lot of women.

Nicole Alicea: Yeah, but on the employer's side, it's like, you know, that 12 weeks is a long time. It's a long time for the employer. Yes, that's three months where that position, those job duties, are not being fulfilled, or they're being fulfilled at a higher rate because they usually come through an agency.

Charlotte Kelly: When I was much younger, I did those temp jobs for women who went out on maternity leave. It was sort of an understood thing that this is what happens when someone goes out on leave, and it's no big deal. It’s just part of how you deal with that person being gone temporarily, and it's understood that it's temporary and they’re coming back.

Nicole Alicea: Yeah, we're not going to even get into a discussion about why that isn't culturally accepted in the U.S. The U.S. seems to be very money-driven, profit-driven.

Charlotte Kelly: Well, I mean, business is. It comes down to being in business versus really just what that country is like. Any business has to make a profit, right? And people are necessary—people at work doing their job is necessary to make profit. So, like, these issues come up in other countries that do have maternity leave, but it's just understood and accepted that this is part of the experience. These mothers come back to work, leaving their infant child with whatever child care arrangement they’ve figured out, whether it be family or a child care facility. They have an infant and no more sick days. They often come back with those reserves kind of depleted. So that's where the Pump Act comes in, providing time to go and pump in a private place. The Pump Act is there for them in that situation.

Nicole Alicea: No, I mean like they don't have any more vacation days or sick days left, and they have an infant at home. What if they get sick?

Charlotte Kelly: They're taking unpaid time off and hoping they can take that time off. It’s really complicated. Once a woman becomes pregnant and has a child, it becomes a major juggling act, and hopefully, they're employed by an employer who cares and will support them through that journey and sees it as good business. It's good business to care. It's good business for the other employees to see, "Oh, this is an employer who cares." It's good business because high turnover is bad business. It's expensive to have to deal with high turnover. You want employee longevity. You want employee retention. And part of that is embracing the human experience that these employees live through because they’re human beings.

Nicole Alicea: Do you mind sharing some stories? I love case studies just to understand different scenarios and how they play out to help us understand this area of expertise of yours.

Charlotte Kelly: Sure. I mean, we were talking previously about pregnant employees where there was more than one at one time. One of the employees didn’t really need accommodations, didn’t have morning sickness, and was just going to work like normal. She had a family member in management, so she wasn't making any waves. There was no stress or drama around her pregnancy. Whereas the other pregnant individual had a preexisting health condition that was exacerbated by her pregnancy. She was also limited in what medications she could take because of being pregnant. As a result, she needed additional leave and had to take extra breaks for certain treatments related to her condition. There was suspicion that she was taking advantage of or exploiting her pregnancy and the work-related allowances she was provided because of this additional health condition. That's nobody else's business; it's her business and HR’s to the extent that they need to provide the accommodation and management to continue administering job duties.

Nicole Alicea: I also think it's very immature of the employer to assume that she was lying or that she was being dramatic because not all pregnancies are the same. Not all bodies are the same. That was pretty crappy. So your client reached out for help, and…

Charlotte Kelly: She was later fired. The story ended with her getting fired, but she didn’t really want to work for an employer like that anyway.

Nicole Alicea: So she ultimately ended up being better off.

Charlotte Kelly: Yeah, it ultimately ended up successfully for her in her specific situation.

Nicole Alicea: We also discussed—and you kind of touched on it earlier, but I want to address it a little more officially—because I think a lot of people may struggle with this and not really know how to request accommodations, not just for their pregnancy but for personal medical conditions they might have. How would you advise an employee to approach their employer and make these requests? And how much personal information do they have to share or not?

Charlotte Kelly: They shouldn't necessarily have to identify a diagnosis unless it is specific to the accommodation they are requesting and there’s some compelling need for that information. But they could say something like, "I'm going through some medical things, and I therefore need to request an accommodation." There are no magic words for requesting an accommodation, but if you can use the words "reasonable accommodation" or even cite the law a little bit…

Nicole Alicea: That sounds scary, like, "According to blah, blah, blah, blah." As an employer, that would terrify me. I’d think, "Oh my God, this person is coming for me."

Charlotte Kelly: Well, it puts the employer on notice that this is an official request for something. This isn’t something casual. This is an employee needing to assert their legal rights in the workplace. So, I mean, there's no magic language, no magic words for requesting an accommodation. But if you can recall the legal terminology in the moment, it’s helpful, though not necessary. If you can say, "I'm going through some medical things, so I need to request some scheduling flexibility," or "If I could have a whiteboard for my office, that would help me a lot. If I could have a different chair, like one with better lumbar support, or a footstool for my office, or if I could be allowed to bring in a footstool, could I do that?" It really depends on the specific situation. And you can say, "If you need me to bring in a doctor's note to verify that I need these things, I’ll do that." Just be willing to offer that in good faith.

Nicole Alicea: As soon as I hear that, I think, "I don’t want to be that problem employee who's always complaining," or get retaliation, or for my employer to see me as a troublemaker or trying to be difficult or picky.

Charlotte Kelly: Phrase it as, "I want to be sure I’m putting in good work for you. Can I be allowed to bring in a footstool or sit instead of stand, or be able to take breaks so that I can sit for a moment and then come back to standing?" Focus on the work. You know, "I want to continue doing good work. I want you to be pleased with my work product. I want you to continue to be satisfied with me as your employee." Focus on your performance and that you are there for a particular reason—you're not there just to request accommodations all day long.

Nicole Alicea: And you're required to provide it to me because I ask for it, because I’m telling you I have an undisclosed medical condition, and, you know, there’s that opportunity for abuse. But I think it certainly helps your case, and it casts you in a better light if you remind the employer—or at least reiterate—that you're just trying to do the best possible job you can despite some personal challenges you’re having. And to be honest, a lot of us have different types of challenges that we’re dealing with. There’s really nothing to be ashamed of. There’s nothing wrong with you. A lot of other people have all kinds of stuff that’s arguably worse.

Charlotte Kelly: Right, and they are perfectly employable and do a wonderful job at what they do. It’s also important to make sure you’re aligned with an employer who is caring, who has a long-term vision, and who’s going to have your back. As an employer, make sure you're that company with a long-term, mission-driven, core values mindset of taking care of your employees. It’s good business.

Nicole Alicea: Totally. You had given me the case of a bipolar mom who couldn’t take her medication. She was requesting to work remotely. They said, "Nope, you cannot work remotely." And they said, "If you can't come to the office, you won’t have a job anymore."

Nicole Alicea: What went wrong there?

Charlotte Kelly: Well, it was a movement to have all the employees come back to the office. During the pandemic, a lot of people were working remotely, and then there was a movement to have everyone come back to the office. That’s what happened here. She said, "No, I really need to work remotely because I'm pregnant, and I'm not able to take my medication, and I’m dealing with this pre-existing condition while also being pregnant. It really helps me to be able to work remotely. Can I please continue to work remotely?" And they said, "No, everybody has to come back." She ultimately felt forced to quit. When it’s a forced quit, that is legally a constructive discharge—a termination.

Nicole Alicea: What did you just say? A termination? A firing when somebody is forced to quit?

Charlotte Kelly: It’s considered a constructive discharge.

Nicole Alicea: And what does that mean?

Charlotte Kelly: It means it’s a termination, legally speaking.

Nicole Alicea: So she contacted you.

Charlotte Kelly: Right, because her employment came to an end, not by her choice. It wasn’t because she was not performing her work duties—it was because her employer was unwilling to grant a special accommodation. She had a legitimate legal need for this accommodation to work remotely. There was no undue hardship on the employer to allow her to work remotely, but they refused. She requested FMLA, and they told her that was not an option. They walked her out.

Nicole Alicea: Why did they say that wasn’t an option?

Charlotte Kelly: Some employers just respond that way.

Nicole Alicea: So it’s not that it was true—they just said that. Honestly, when I’m hearing you and thinking of, you know, the employer knowing these things or being able to... I think of all these untrained—I don’t want to call them incompetent—but untrained people who are maybe good at their job, and then they get promoted to a managerial position, and they’ve received no leadership training. They don’t really know what the law is, what’s correct, what’s not correct. It’s not like they sit you down and put you through this whole course, or you have to do continuing education credits to stay up to date on all the legal stuff. And I guess that’s where a lot of your clients come from—managers and leadership who don’t know the employees' rights or how to handle these situations correctly. They end up having these negative dialogues that are unfair and just a wreck because the employer doesn’t know what they’re saying, the employee doesn’t know what their rights are, and that’s kind of where you come in as a coach to clear the air on who needs to do what. But usually, by the time you’re coming in, it’s too late.

Charlotte Kelly: Usually, yeah. Employee rights in the workplace are limited. They’re not expansive, especially in Florida.

Nicole Alicea: What are employee rights in the workplace?

Charlotte Kelly: Protected classifications like gender discrimination, pregnancy, sexual harassment, religious discrimination, disability discrimination, accommodations—the different laws we’ve talked about today. But it’s not black and white in every respect. Like I said, there’s a balancing act with requests for accommodation. You can’t just request the moon and expect your employer to do it for you and say, "Well, you have to do it because I requested accommodation," right? The employer has to actually be able to provide it, and it must not be an undue hardship on their business. The employer still has to be able to run their business.

Nicole Alicea: I mean, pregnancy and leave is a hardship on their business.

Charlotte Kelly: Sure, but it can be a hardship to a certain extent.

Nicole Alicea: For the 12 months.

Charlotte Kelly: Well, in this respect, if it's FMLA, it's 12—

Nicole Alicea: 12 weeks! Sorry! Mom brain! One more reason not to hire them. One more reason to not hire women. Seriously. I mean, here’s the societal issue—Mom brain. Mom brain is what happens when you’ve got so much stuff in your brain because I'm not just worried about everything that's going on at work. I'm also worried about things that are going on at the house. I’m also worried that we need more milk. I’m worried about the laundry. I’m worried that my daughter has a cough, and I have to pay attention to make sure I don’t need to take her to the doctor. If she does need to go to the doctor, I’m the one. The woman usually is the one that gets stuck with having to take the child. You know, in more progressive households, I’ve met some men who state that they take time off and take turns, but usually, historically, the people I surround myself with—generally, it’s the woman who gets stuck with the majority of the burden, and you get overloaded. It’s just a lot. Everything is a lot once you become a mom. It’s the hardest thing I’ve ever done. Going to work is so easy. My husband gets in his car, drives to a place where he’s doing and talking about adult things, focusing on his work, and he’s not thinking about what he’s having for dinner. The responsibility of providing dinner for my family falls on me. So around 4 o’clock, I’m going, "What the hell am I going to put on the table for my family?" That taxes my brain, and you have mom brain. It’s tough. It can be very tough to juggle. I mean, and I live a very cushy life because I’m self-employed compared to what the majority of women out there have to juggle and deal with—having to report to an employer, especially if that employer is not understanding, does not have a mission mindset, and is not very accommodating.

Charlotte Kelly: Right. They provide their 10 days of leave, and the employee comes back with no leave remaining.

Nicole Alicea: And having an infant at home who is not ready to be separated. Miriam, who’s on our team, wrote a whole paper about this. She said that returning to work so quickly and not spending enough time with the newborn is correlated with infant mortality, domestic abuse, postpartum depression. And, you know, it makes sense. Totally makes sense.

Charlotte Kelly: Yeah, very understandable. And it's to the detriment of our families in general, of our society.

Nicole Alicea: I think the only other thing that I feel a little bit unclear on is the overlaps between the Pregnant Workers Fairness Act, the Pump Act, ADA, FMLA. These are just so many. It’s very overwhelming. And it’s like, what are my rights? What protects me? What covers me in different situations?

Charlotte Kelly: Well, the ADA, the Americans with Disabilities Act, pertains to disabilities. Pregnancy is not considered a disability, but there are lots of health conditions related to pregnancy that could be considered disabilities.

Nicole Alicea: Like preeclampsia.

Charlotte Kelly: Yeah, issues that pre-exist pregnancy, that become exacerbated by pregnancy, that are triggered by pregnancy, and that remain once the pregnancy is completed. So, the Americans with Disabilities Act would apply in that situation, and there would be accommodations available under the Americans with Disabilities Act. In Florida, we have the Florida Civil Rights Act, which also protects disabilities and affords accommodations. In Hillsborough County, we have the county version of that, which is the human rights ordinance. The city of Tampa has something very similar. So it depends on where you live, where you work, the number of employees—there are a lot of different factors at play as to which of these laws apply to your situation. Then there’s the FMLA, which is for leave. In a lot of situations, it could be considered an accommodation under the ADA or the FCRA, Florida Civil Rights Act. So, you've got the Family Medical Leave Act as its own thing, but that only applies in situations where you’ve been with the employer for a year, and that employer has 50 employees within 75 miles. So, there are quite a lot of jobs out there where the FMLA is not available.

Nicole Alicea: Right. And Maria mentioned to me on the way over here about a situation where the wife had to take unpaid leave because the employer didn’t, or they didn’t qualify, right, for FMLA. But then the father could take paid leave. So, they kind of mixed and matched their schedules to make it work because he did work for the Department of Corrections, and he qualified for that.

Charlotte Kelly: Oh, that’s good. Yeah, I mean, people just do what they can to make it work. And then the Pregnant Workers Fairness Act—that’s about accommodations, similar to the ADA, but it’s about pregnancy versus disabilities. And similar to the FMLA, the PWFA includes leave, but it does not require that the employee has been with the employer for a year. So, it’s got some overlap, but also some important differences and protections specific to being pregnant. Then there’s the Pump Act, which falls under the Fair Labor Standards Act. So, if an employer is not covered by the Fair Labor Standards Act, then they do not need to comply with the Pump Act. But most of the time, an employer will be required to comply with the Pump Act. But that’s merely about pumping breast milk in the workplace, in a private area, a private room with a door and a lock that is not a bathroom.

Nicole Alicea: So, it sounds to me like the solution is to make sure that you're applying to work for an employer that holds these values and has a good package for pregnant employees. When it comes to benefits, pay is discussed in the interview process. Then it’s like, "Well, what benefits do you guys offer?" If it’s not expressly written or you’re just talking about it in person, is it appropriate? Because I’ve heard stories of people asking, "What are the benefits?" and the answer they get is, "Oh, you know, just all the standard basic stuff." So there’s not a lot of specificity there. And then the employee might feel like they don’t want to press because they don’t want to sound like they’re only interested in the benefits, right? Which isn’t a good look either. But it sounds like that’s actually really important to know. Am I hopping on with a company that has really great benefits? Would you advise a potential employee to ask? What would be the correct way to figure that out before committing to go and work for this employer, so they don’t get stuck in a workplace where they’re not treated fairly?

Charlotte Kelly: Well, prior to the employment interview, doing some online research, like looking on LinkedIn, looking on Glassdoor.com, sometimes Facebook. Often, there are reviews, employee reviews of companies. Sometimes it’s the most negative situations because people only describe their experience if they are disgruntled. But this is something you can bring up at the interview. This is the employee’s chance to interview the employers as well. During the recession, a lot of us were scared to do that because we just wanted a job. There was a different mentality then than there is now, but now it’s encouraged for you to interview the employers. You’re saying, "I’m going to give you my best, but what is your role in that? What would you say employees like about working here? What specifically are the employee benefits?"

Nicole Alicea: I like that. It's a very smooth transition.

Charlotte Kelly: What specifically are the employee benefits? Is there a 401k match? Is there short-term disability insurance, which can also be used for maternity leave? The employer can come very prepared with a list of questions that are significant. I think a lot of people come into interviews and they're not really prepared. They're just kind of trying to get the job. That little preparation could help a whole ton.

Nicole Alicea: Thank you so much for coming back. This has been very enlightening. Certainly, I feel—I don't want to say guilt—but in the previous episode, like the Michael Budensiek episode, I was kind of bragging about, "Oh, yeah, I breastfed my daughter for three years." And again, I had that little pandemic break that kind of kept me at home. But I just recognize how lucky and how blessed I've been to have the experience that I had with my daughter. It really breaks my heart that for the majority of women who have traditional employment, they struggle with so much BS that they shouldn't have to deal with. I mean, I don't want to be bright-eyed and bushy-tailed and say, "We should live in a world where blah, blah, blah." I mean, we would hope for that. And I think the most we can hope for is more education, more awareness, and more best practices on how to handle these difficult situations.

Charlotte Fernee Kelly is available at FloridaEmploymentLawAttorney.com. If you are an employee and have questions, or if you're an employer and want to make sure that you are compliant and know how to navigate these sticky situations successfully, please reach out to her. She's a dear friend, and as you can see, she's very generous with giving advice and doing the right thing.

Charlotte Kelly: When it comes down to it, employment is a relationship. The employer and employee need each other. It’s about navigating the intricacies of that relationship and making it work for both of you.

Nicole Alicea: …and you help bridge that gap.

Charlotte Kelly: I help as much as I can, yes.

Nicole Alicea: Thank you so much, Charlotte, for coming back.

Charlotte Kelly: Thank you so much for having me.

Nicole Alicea: Make sure you hit subscribe so you can be notified of new episodes where we discuss business, marketing, and peek under the hood of successful companies to understand the leadership behind the organization and best practices for today's challenges. I'm your host, Nicole Alicea, founder and president of Create Brand NV, an integrated global marketing communications firm based in sunny Tampa Bay. Learn more at createbrandnv.com.

Announcer: Thanks for listening to Create Brand NV. Be sure to subscribe wherever you heard this podcast so you never miss a future episode. Brand NV is an integrated marketing and advertising agency that helps brands innovate while maintaining their focus and identity. To learn more or to get in touch with Nicole, visit createbrandnv.com. That's create brand and the letters N V .com. We'll see you next time.