House passed bill would require better pregnancy accommodations

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While the nation argues about racial discrimination, another group continues to suffer the slings and arrows of unequal treatment. Namely, pregnant women in the military. A House passed bill would require all organizations to make better accommodations for pregnancy. Federal Drive with Tom Temin got a walk through on what it would mean to government agencies from Federal Practice Group partner Heather White.

Interview transcript:

Heather White: It’s actually an excellent development, which would allow pregnant workers to finally simply request accommodations because they need them as a pregnant person, rather than having to establish some kind of disability status, which we previously had to do to be entitled to any kind of help from an employer.

Tom Temin: And this would apply to federal agencies and the private sector, correct?

Heather White: That’s correct. In the federal sector, of course, it’s particularly helpful because the federal government has made a long term commitment to being very organized and generous when it comes to reasonable accommodations for disabilities. And this finally will allow women who are pregnant access to those same benefits.

Tom Temin: What are some of those that they lack?

Heather White: Actually, it can vary from person to person what may be needed, but it can be as simple as the employee needing to be able to carry a water bottle or being able to be seated or being able to take breaks during the day just to comply with their doctor’s advice about how to make sure that their pregnancy proceed safely. And up till now, there really hasn’t been any legal channel for employees who don’t have some kind of diagnosed medical condition, but who just for the sake of a safe pregnancy would benefit from these flexibilities in the workplace. To be able to simply say to their boss, I need this, can I just have this because I need it. Up to now employers have been able to say no because there wasn’t a legal entitlement for even these minor changes, which you wouldn’t think would be an issue and yet they often have been for women.

Tom Temin: Sure, I guess it may not be considered a medical condition but I don’t know too many men that would trade places with women that are pregnant.

Heather White: It’s so physically difficult truly, and such an important thing, if you think about it for the species overall. And yet, pregnancy has not been classified as a disability, which is an important, that’s correct it’s not a disability, but it is certainly a unique medical situation. And unfortunately, there haven’t been adequate protections in the law. And if the Senate was to pass this, and the President was to sign it, this would certainly expand universal protections for pregnant women, which you would think everyone would agree was a good thing.

Tom Temin: In your understanding or your knowledge and experience in this issue — how does it vary across federal agencies? That is to say you would expect maybe a medically oriented agency like NIH, for example, would it be more accommodating than the Defense Department, for example?

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Heather White: Well, interestingly, a lot can depend on the physical requirements of each position. Obviously, for law enforcement officers, this has come up because their actual physical fitness standards for those positions. And unfortunately, there is so much variance across agencies where it really can come down to your relationship with your supervisor, and if they are a reasonably evolved person who understands that this is a temporary, important situation, which requires a bit of flexibility on their part. Or if it unfortunately becomes a basis for forcing women out of the workplace, often, perhaps due to outmoded stereotypes about whether mothers should even be working, which unfortunately, a lot of women do run into during pregnancy.

Tom Temin: Got it. Have you had cases like that?

Heather White: It is fairly shocking in this day and age, but the employees that we represent and EEO complaints, and sometimes in the civil service due process cases will bring us really horrible anecdotes about how they have been assigned away from duties which their supervisors decided were not suitable for pregnant women, or have they had been denied minor changes to their workplace like being allowed to use, for example, carts to move heavy files to and from a courtroom, where before they would have been required to haul them physically. And of course, at a certain point, it’s not a good idea when you’re pregnant to be carrying heavy weights. And you would think that was such a minor change. And, yes, unfortunately, we see this every day. Also, of course, telework, in situations where bedrest may be necessary has, unfortunately, been a huge bone of contention, although every government policy is officially in favor of telework. And yet on an individual basis, women negotiating with their supervisors will often find that the supervisor is just resistant. Even when their doctor has clearly stated that they need to be home and resting in order to ensure a safe pregnancy. And of course, these days with COVID, there’s really no excuse for that, because we’ve discovered that most jobs in the federal government can in fact, be done remotely. So this is going to be interesting when we do have a sort of larger return to the workplace, to see if agencies have realized that they really don’t have a good leg to stand on in most telework situations.

Tom Temin: What other provisions in the law should we know about? Basically it requires agencies to make accommodation, anything else that’s important in there?

Heather White: Well, it also bars agencies and employers generally from discriminating against women. And I think it’s important to note that it’s not merely during pregnancy, but also it applies to any medical symptoms which may arise related to pregnancy. So, also after birth, there’s often a need for employers to allow mothers returning to the workplace to have a safe and clean place to lactate. And this, again, this has actually been in the law in multiple forms for years, however, we still find that we do have clients come in who are not able to find a safe and private place in their office to express breast milk for their babies. And of course, everybody’s decision is different about when they think it’s appropriate to do that or not to do that. But for mothers who want to do it, it’s very important that employers comply with the law and provide them with a safe, clean, private place to do it. And we hear horror stories about mothers who are required to go in a broom closet several times a day to use their breast pumps, or who are told oh well, you don’t have an office with the door, but you can use the conference room and just put a sign on it and hope no one walks in on you. And obviously, this is unacceptable. But this too, can be a huge way that mothers are at a disadvantage and sort of put in this position of being seen as unreasonable when they ask for the basics of what they are entitled to under the law.

Tom Temin: And what about temporary job transfers. For example, if you’re a fighter pilot in the Air Force, well, you probably can’t get into the seat if you’re 6,7,8 months along the way there. Is that something you have seen that needs to be addressed the idea of doing something else temporarily, and then going back without losing seniority or something or losing the ability to use a special skill you might have had before the pregnancy?

Heather White: Certainly. Where agencies offer light duty in any disability situation, that should be available as an accommodation for women who are pregnant. However, there are limits to the law. It is true that it is applicable only to civilians in the federal government as well as to civilians in the private sector and employed by state and local governments. So this particular statute would not be applicable to members of the military. However, yes, in the military, as well as in other jobs in the federal government, which has physical fitness requirements, there is a recognition that the physical fitness standards obviously can’t be fairly applied to women who are in their second or third trimester and are just, you know, limited in their ability to like run a five minute mile, or, as you say, to fit into tight confines of a plane seat, let’s say. So, certainly, there are ways that agencies can accommodate women either by allowing them to perform other duties as assigned, or to, as I said, transfer to light duty, which they would allow anyone who has some kind of medical restriction that is temporary, while they’re recovering from, say, an injury — that is something that is generally applicable to people who have any kind of medical restriction temporarily. And women should of course, then be allowed to return to full duty, once the pregnancy is over, and they are ready to do that. And that’s always been a concern that you might lose your seat in, particularly in a job which is highly competitive and physically strenuous. That if you make the perhaps career ending mistake of actually deciding to have children and expand your family, that might actually come with cost to your career. And obviously, that is unfair, and that is one way that the law aims to prevent that from happening to women.

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