What's the best way to protect employers and provide for employees who are pregnant? "Avoid lawsuits," advises Marjory Robertson, Esq., assistant vice president and senior counsel for Sun Life, in this episode of Absence Management Perspectives: A DMEC Podcast. The topic is especially timely with new legislation that requires employers with at least 15 employees to provide reasonable accommodations for pregnant employees. The issue of how (and whether) to accommodate pregnant workers could get easier for employers once the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act become effective June 27, 2023. Listen in to this episode for insights on court cases that illustrate the costs and complexity involved now and how the federal legislation could change behavior to ensure all employees are treated equally and fairly.

Resources noted during the podcast:

1. Navigating the Complex Web of Pregnancy and Parental Leave Laws and Programs feature article in @Work magazine: http://dmec.org/2022/11/20/navigating-the-complex-web-of-pregnancy-and-parental-leave-laws-and-programs/
2. DMECommunities: http://dmec.org/resources/dmecommunities/
3. Insights from Marjory Robertson about recent court cases on LinkedIn: https://www.linkedin.com/in/marjoryrobertson

DMEC: Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC, as were known by most people, provides focused education, knowledge and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 18,000 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you'll visit us at www.dmec.org to get a full picture of what we have to offer. From webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.

Heather Grimshaw: Welcome to Absence Management Perspectives: A DMEC Podcast. I'm Heather Grimshaw, communications manager for DMEC, and we're talking about pregnancy and childbirth related accommodation laws with Marjorie Robertson, Esquire, assistant vice president and senior counsel for Sun Life. Marjorie wrote the feature article titled “Navigating the Complex Web of Pregnancy and Parental Leave Laws and Programs” in the Healthcare and Wellness issue of @Work magazine, and she's agreed to share some perspectives on this important issue with us. You'll be able to find a link to the article in the Notes section of this episode, and I encourage everyone to take a look at that piece. It's a great one. Marjorie, to get us started, I'm hoping you will share some context about how common pregnancy and childbirth related accommodation requests are today.

Marjorie Robertson, Esq.: Absolutely, Heather, and thank you so much for inviting me to be on this podcast. I actually reached out to our short-term disability claims professionals because I was curious what percentage pregnancy related claims are, certainly for childbirth, but sometimes even before childbirth, and they indicated that it's between 25 and 30% of all STD claims. But, to me, I thought it would be a little bit higher. But the thing to bear in mind is that's total disability, to go out on short term disability, you have to usually satisfy an elimination period of at least one week. So it doesn't include any of those intermittent leaves that somebody might need or other accommodations that they may need in the workplace. So I'd love to survey employers, but I would imagine it's the single most frequent request that they get are from women who are pregnant, who need more frequent breaks. They may want to work from home some, they may need a greater ability to sit. We actually have had some at Sun Life where women wanted to when we used to work in the office, now we're pretty much fully remote, but when we worked in the office, women wanted to be able to park closer to the building because it got harder and harder for them to move as the pregnancy went along. So I don't have firm data on that. I would love to find out, maybe through DMECommunities. Kind of what the sense is. But I definitely think it is something that employers struggle with.

Heather Grimshaw: Absolutely. And I think that's a great suggestion for the DMECommunities. So in your article, you note that the variations in local, state, and federal laws that apply to pregnancy leave can not only be confusing, but overwhelming for employers. Can you talk a little bit about that and if there are any tips or tools you recommend?

Marjorie Robertson, Esquire: Sure. First, I'll talk about how confusing they are. So if you separate it into the federal laws and then we'll look at the state laws, the federal laws themselves are very confusing. There's the Family and Medical Leave Act (FMLA) where pregnancy itself is a serious health condition. And so employers, if FMLA applies, employers are going to have to allow leave. And there's actually a provision in the regulations that employees who are pregnant can take leave, like for morning sickness, even if they're not receiving treatment for that. So the FMLA is pretty generous about its treatment of pregnancy related leave. Now, the Americans with Disabilities Act, on the other hand, was adopted and there is a generally accepted interpretation that what they call a routine pregnancy, which I laugh whenever I say it is not a disability. And I only laugh because for anybody who has been pregnant, I'm not sure there's anything routine about it. I think every pregnancy has its challenges and is is out of the ordinary for the person going through it. But that is the law. But under the Ada, if you have complications in your pregnancy, then it can be a disability. And one of the challenges with the Ada generally is that there's no hard and fast rules. And so cases are often decided on how sympathetic the parties are. So if a jury or a judge feels that the employer isn't being fair to the pregnant woman, they may be more inclined to find that a complication is a disability. Under the Ada. In contrast, there was a recent case where the woman had complications, she needed blood transfusions, and the court said, well, you still haven't shown enough that it's a disability under the Ada. So it can be all over the place. And then the Pregnancy Discrimination Act. Sounds great. It prohibits treating women worse because they're pregnant. That was interpreted by the Supreme Court probably 15 years or so ago, maybe even more, as not requiring mandatory accommodations for pregnant women. But they did say that if the employer offers accommodations to others who are not pregnant, they can't treat the pregnant person differently for reasons that are discriminatory. It's a lot of words in that case. It's the Young versus UPS case. The UPS had a policy where they would allow light duty work for people injured on the job and also for certain medical conditions, like if you had cancer, but they didn't allow it for pregnancy. And so the court said, well, distinguishing between pregnancy and other medical conditions is tricky, so they were more sympathetic to the pregnant women being excluded. But there was another recent case that involved, actually Walmart, where they have a policy that they follow pretty closely that if you're injured on the job, they'll give you a light duty, but they will not give it to pregnant women and they don't make exceptions for other medical conditions. And the Court of Appeals in that case, actually it was a district court opinion ruled in favor of Walmart. They said it may not seem fair that pregnant women are not getting these accommodations, but it doesn't violate the Pregnancy Discrimination Act. And then if we throw into this, there are also laws like the Fair Labor Standards Act, which regulates overtime and has laws about providing breaks for breastfeeding. And so those are kind of tucked away into a separate law that really has nothing to do with pregnancy or disability. So it is very confusing at the federal level about what law is going to apply and when. And then if you add into that the many states, there's easily over 20, I can't remember exactly how many, that have their own pregnancy accommodation laws. And these states adopted these laws because it's been a fairly recent phenomenon, because they saw that there is a gap at the federal level. And so if you're in one of these states and you have a pregnant employee who needs leave or an accommodation, you need to be very careful because they will require it. And then states also sometimes have their own version of the FMLA. They sometimes have paid family and medical leave programs that can apply. So you can end up with this crazy patchwork of things applying potentially to your employees.

Heather Grimshaw: Even just listening to you now, my mind starts to swim. And it says your article lays some of those pieces out really beautifully. You also talk about some of these different laws on your LinkedIn profile. So you shed some light on different cases through LinkedIn. So we'll also include Marjorie's LinkedIn link, so you can hear some of or read some of her commentary. So one of the things that you talk a little bit about is the question of liability for employers. You have mentioned recent trials involving pregnancy accommodation and leave issues that provide valuable lessons for employers. So I'm hoping you'll share some of those cases and the lessons they offer.

Marjorie Robertson, Esq.: Sure. Speaking of reading the cases, so I do post about cases on LinkedIn. I usually tell when I'm speaking. I'm sure people are sick of me saying it, but I made a New Year's resolution. It's probably five years ago that I was going to try to read every single FMLA and ADA pregnancy accommodation case decided in the United States every year. And I like to say I must have had too much to drink when I made that resolution, but I'm very stubborn and so I have stuck with it and it's a gold mine. And the cases are interesting. That's one of the things about being an employment lawyer is you can't make up some of the things that people do. So I really do try to keep my pulse, my finger on the pulse of both jury trials as well as important court decisions. So in terms of jury trials, I will say that the most recent case that I was looking at is a good example of what can happen to an employer. In this case, the woman had a condition [known as Ptyalism] which is spelled with a p, but it's apparently pronounced “tyalism.” … And it's a condition where you develop excessive saliva. And this was a pregnant woman who developed this condition, and she found a way to deal with it. She walked around with a cup that she would spit in and that helped her to take care of it. Well, the employer told her that she was going to lose her job if she kept doing that. They felt that they had sanitation issues with their production environment, and it ended up in a jury trial. And the jury awarded her about $34,000 for wages she lost after she lost her job, $10,000 for emotional distress, and then another $50,000 in punitive damages. Now, that's not one of the multi-million-dollar jury verdicts, but it's something that employers should pay attention to because these small, relatively small dollar cases can get even more expensive because of the attorneys’ fees aspect. The way that these laws work is that if someone succeeds under the Americans with Disabilities Act or the Pregnancy Discrimination Act or the FMLA, then the employer is ordered to pay that employee's attorney's fees. And we covered this, Megan Holstein, and I. Megan is now at The Hartford, but we've done an annual update over the years, and we’ve shown how these attorneys’ fees can be monumental. They can be much larger than the verdict. And this case in particular has had several appeals. There was one court appeal that took away the 50,000 in punitive damages, and then just recently, in October, there was another court appeal that gave them back the punitive damages. Well, all of those appeals cost money. And so the employee ultimately is going to submit a request for attorneys’ fees. And it's entirely possible these attorneys’ fees for this case could be more than $200,000. And so in addition to that, employers have to pay for their own lawyers. So the approach I like to take when I'm helping employers, including my own, where I work, I'm Fun Life's employment attorney, is, I tell them, look, you don't want to have a lawsuit that you win, you want to avoid lawsuits because just being in a lawsuit is expensive, it's distracting. So it's better to be err on the side of being more conservative. So I actually have a rule of thumb for years now when I have been talking to managers about situations where there's a pregnant employee who they don't want to allow leave to or an accommodation. I have a saying you don't screw around with pregnant women. It's a little profane but the point of it is that if you end up in a jury trial, it's 99% of the cases, the jury is going to be much more sympathetic to the woman who is pregnant and worried about her child than they are to the employer. And also the law in the area of pregnancy, especially the federal law, is so confusing that you'll never know for sure how things are going to go. And there's a saying among lawyers that bad facts make bad law. And so if you end up with a very sympathetic employee, either the jury or the judge is probably going to bend over to try to find a way to rule in their favor.

Heather Grimshaw: Right. I think that's such a good point, and it's a great saying, frankly. I'm glad you shared it here.

Marjorie Robertson, Esq.: The other good news for employers is that pregnancy is a limited time condition. So I think employers get very frustrated with accommodations and leave generally, particularly for chronic conditions where it can go on and on. At least with pregnancy, it's time bound. So it may be very inconvenient for the period of the pregnancy, but then it's over.

Heather Grimshaw: Absolutely. So one of the things that I would be remiss if I didn't ask you about is the Pregnancy Workers Fairness Act and from your vantage point, what effect it will have on how employers address this important issue. You recently described this as and I'm using air quotes here commonsense law on your LinkedIn profile. And I'm hoping that you'll talk a little more about that comment to provide our listeners with some context.

Marjorie Robertson, Esq.: Sure. It's sort of exciting because basically the law would mandate accommodations. It would take the laws that are in many of the states that mandate accommodations for pregnancy or pregnancy related conditions. It would do that at a federal level. No matter which state you are in. This would be mandated reasonable accommodations. They can't cause undue hardship. I think it's just such a shame we don't have a federal law. A number of the cases that you see where women do not succeed in pregnancy cases is because they're in a state that doesn't have their own pregnancy accommodation law. So there have been a couple of recent cases, one in Texas, one in Florida where they don't have a pregnancy accommodation law. And so that craziness of the current federal atmosphere applies. In contrast, in the states that do have the pregnancy accommodation laws, it's a two second discussion. If an employee needs an accommodation, they get an accommodation. And it just seems really unfair to me that pregnant women in one state can get an accommodation without a lot of discussion. And women in another state can be denied the same accommodation. So I hope that it gets passed. I think it'll actually be easier for employers. They may not be necessarily happy that they've got to do these accommodations everywhere, but I think they won't have to consult as many lawyers, that's for sure, because they'll have one rule for all and it will make it much easier. So I am keeping my fingers crossed.

Heather Grimshaw: So that was kind of my follow-up question for you is what happens with the state laws? Will absence management professionals still have to assess whether the federal law is more generous or covers more than the state law? How will that simplify that question for absence management professionals?

Marjorie Robertson, Esq.: So I think the practical reality is it will make it a lot simpler. The state laws will still exist, they won't go away, and the federal law will have its own provisions. So it's possible that in some states that offer more generous accommodations for example, one area where I can see it happening is that in a number of the states, including Massachusetts, there are certain accommodations that you have to allow and you can't ask for medical, including more frequent breaks, giving people something to sit on. Under the federal law, I think you're always entitled to ask for medical documentation. So that could be one area where employers [will] … hopefully … develop a common approach. But it may be that in some states they can still ask for medical, but they can't in others because of the provision of a state law. But for the most part, I think one thing that will happen is we won't see any more state pregnancy accommodation laws adopted. They were being adopted to fill a void because we didn't have a federal law. So I think that will slow down and I just think it will lead to a more common approach by employers to treat all employees the same.

Marjorie Robertson, Esq.: Right. It is sort of amazing that we have a Federal Pregnancy Discrimination Act and yet there were so many charges filed, and I think it's because of that gap that I talked about. The Pregnancy Discrimination Act means you can't treat pregnant women worse than you treat other employees, but it doesn't create any affirmative obligation to provide accommodations. And I actually have another jury case. I can give you an example of that was a manager at a fast-food franchise who needed to breast pump at work. And basically she was harassed for it. Some guy stood outside where she was. There was only an office with windows that she could use, so she tried to put paper up, and a guy stood outside and made fun of her by pumping his own breast, so to speak. Other men came in to get things. It was also the storage room. So they were coming in and out, and she was generally kind of bullied for it. She went to trial, and she was awarded 25,000 in back pay and a million 500 in punitive damages. But the judge reversed the jury verdict and said that the basis of what the jury seemed to be saying is that they didn't give her the right room to do the breastfeeding in, that if she'd had a more appropriate room, that everything would have been fine. And the judge said, the law doesn't require that. The federal law did not there is one federal this is where I talked about, the fair labor standards act. It actually does have rules about lactation and rooms, but you can't recover any damages, really, if that right is violated. So what the judge ended up saying is, there's no legal basis to award this amount of damages to this person. Now, I'm not advocating big jury awards or big jury verdicts, and that's not why I think the pregnancy accommodation law should be adopted. Again, I think the pregnancy accommodation law will help change behavior, make it a more uniform approach, and avoid lawsuits on all sides.

Heather Grimshaw: That's a really great example of what can happen and then if a judge goes in and reverses it. So, yes, again, very complicated. And so I'm really happy that we'll be able to unlock your article, which really walks readers through the different state laws and some of these nuances so they can use that as a guide. And then any and all additional resources that we can share will be in that note section of the episode. So hopefully everyone will check those out. So thank you so much for your time today and your expert guidance. It's really helpful. We appreciate it.

Marjorie Robertson, Esq.: Thank you. It was fun.