Pregnant Workers Fairness Act PWFA with Attorney Travis Hollifield

Attorney Tom Hollifield: My guest today is Attorney Travis Hollifield. He works with working men and women and their families with employment issues such as pregnancy discrimination, lactation, the Family and Medical Leave Act, severance packages, and equal pay in the workplace. Travis, welcome back to the show.

Attorney Travis Hollifield: Thanks, Tom. Glad to be here.

Tom: Travis, tell us who some of your typical clients are.

Travis: I focus my practice more on working women's legal issues, although I certainly have had male clients. Working women have-- there's a panoply of laws that either exclusively or disproportionately affect working women. Probably the number one claim that we get in my office is sexual harassment. Certainly there's sexual battery claims, pregnancy discrimination, as you mentioned, and workplace lactation and pumping issues. These are things that I see on a day-to-day basis in my practice here in Winter Park.

Tom: I see this term, Pregnancy Workers Fairness Act. I don't think that I knew there was such a thing. I assume that's a federal law?

Travis: It is indeed, sir.

Tom: Tell us about the Pregnancy Workers Fairness Act.

Travis: Well, that's PWFA for short. It's a relatively new federal law, it's only been on the books and active for about a year, that provides protection for pregnant women in the workplace who need reasonable accommodations in order for them to have a successful pregnancy process in their working lives. It's modeled very much on the Americans with Disabilities Act, which is a federal statute that provides protections for people with disabilities in the sense that it requires covered employers, and that's any employer with 15 or more employees, to provide reasonable accommodations to their pregnant workers, things such as additional breaks during the day, perhaps a chair to sit down, water breaks, maybe unpaid time off for doctor's appointments, and things of that nature, such that they can have a much more fair, easier time with the pregnancy than might otherwise be available.

Tom: How common is this as an issue for pregnant women in the workplace? How often are you seeing it happen?

Travis: It happens a lot. Working women that are pregnant, that need perhaps an accommodation, that's not an undue burden on the employer, of course. That's the one thing that always has to be looked at, is whether the requested accommodation is an undue burden on the employer or whether it is not. As far as the frequency is concerned, yes, I would say, and certainly in my practice, I've seen women who are pregnant typically will need some form of reasonable accommodation at some point during the pregnancy process.

Tom: Let's take what I think might be an easy example. Let's say you're a female, let's say you're a cashier, and let's say that the business requires that you just stand there every day checking people out, and you become pregnant. She comes to you and says, "Travis, I like this job. I want to keep doing this job, but I need a stool to sit on. I'm pregnant." She came to you, and you might tell her, "You're right. This is allowed to you under the Pregnancy Workers Fairness Act." What steps would you take to make that happen for her?

Travis: For the client, certainly I would find out if the employer is giving her pushback about her request. If so, then perhaps what I would do if I was engaged as her attorney is I would write a letter to the employer and remind the employer of its obligations under the statute, and typically that would miraculously result in a chair being made available or a stool for the worker. If it wasn't, then we might have to get into a litigation position where we actually bring a claim at some point for the accommodation. By the way, you do have to go through the EEOC, the Equal Employment Opportunity Commission, with a charge of discrimination or failure to provide an accommodation as a predicate to going to court.

Tom: If an employee down the line says, "You know what? I stand here all day, I work the cashier, I'm not pregnant, or I'm a man, I want a stool too," what do you think about that situation?

Travis: That person would have to have some sort of protected quality or characteristic that is indeed intended to be protected by law. As I mentioned before, this whole idea of the PWFA is based on the Americans with Disabilities Act, so somebody that has a disability that is not pregnancy related might have a requested accommodation for a stool because of maybe a degenerative back condition, or arthritis, a cardiovascular issue. All of these would be perhaps qualifying conditions that would require the employer to take a look at whether or not the requested accommodation needs to be provided.

Tom: Tell us again what might be some typical accommodations an employer might have to make to a pregnant employee.

Travis: Unpaid time off to go to the doctor would be number one. More frequent breaks, bathroom, or other breaks. More available seating for the worker, and oftentimes there's water breaks and things of that nature are what I see are the typical requested accommodations by the pregnant employee.

Tom: While we're on the topic of ladies in the workplace having babies, what is the obligation of the employer as to after she's had the baby as far as time off, paid time off, not paid time off? What's a minimum requirement?

Travis: Once a pregnant worker has a child, there's a myriad of statutes that would have to be looked at depending on how the employer treats the employee after the child is born. The one that comes right to mind is the Family and Medical Leave Act, or the FMLA, which provides protected unpaid leave for the employee to have bonding time with the child. That comes right to mind as an issue that I've seen a lot in my career, but that only applies to employers that have 50, not 15, but 50 or more employees.

These unpaid leave rights are for larger employers, and there is a small business exemption for those requirements. There could be other statutes that come into play, such as the Pregnancy Discrimination Act where if you-- for example, you may have medical issues relating to the pregnancy after the pregnancy that need to be attended to, there may be some requirements for the employer to provide additional leave period even for those employees.

Tom: I'm going to ask a basic question. If you're an employer, and you have less than 50 employees and a lady comes to you and says, "By the way, I'm pregnant," can you say, "You're fired, you're out of here"?

Travis: No. Again, the FMLA, which is the unpaid leave rights statute, is for 50 or more employees. The Pregnancy Discrimination Act and the Pregnant Workers Fairness Act applies to employers with 15 or more employees. If you are above that threshold, and you're a small employer, you have to consider the pregnant workers' needs as part of the federal and state protections for pregnant workers. If you're under 15 employees, those legal protections do not extend to those employees, so the employer, I suppose, has a little bit more flexibility there.

Tom: If you have 25 employees, a lady comes to you and says, "I'm pregnant," once she has her baby, you are required to give them time out of the office, unpaid even, or not required to?

Travis: Not under the Family and Medical Leave Act. However, if you give other workers who have similar needs for time off for other health conditions, for example, somebody who may have a cardiac event or needs time off for cancer treatments, and you provide time off for that individual, but you do not provide similar time off for the person who is either pregnant or has just given birth, you may run afoul of some of these statutes that we're talking about.

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