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HR entrepreneur Mike Coffey, SPHR, SHRM-SCP engages business thought leaders about the strategic, psychological, legal, and practical implications of bringing people together to create value for shareholders, customers, and the community. As an HR consultant, mentor to first-stage businesses through EO’s Accelerator program, and owner of Imperative—Bulletproof Background Screening, Mike is passionate about helping other professionals improve how they recruit, select, and manage their people. Most thirty-minute episodes of Good Morning, HR will be eligible for half a recertification credit for both HRCI and SHRM-certified professionals. Mike is a member of Entrepreneurs Organization (EO) Fort Worth and active with the Texas Association of Business, the Fort Worth Chamber, and Texas SHRM.
So even though it's a good thing and we all want you know, especially from a retention standpoint, I mean, you want women of childbearing age to feel like, oh, I'm in a great place and they will work with me. And if I have a complicated pregnancy, they're there for me and I'm loyal. All of that's a good thing, but the devil is in the details always.
Mike Coffey:Good morning, HR. I'm Mike Coffey, president of Imperative. Bulletproof background checks with fast and friendly service. And this is the podcast where I talk to business leaders about bringing people together to create value for shareholders, customers, and the community. Please follow rate and review Good Morning HR wherever you get your podcast.
Mike Coffey:You can also find us on Facebook, Instagram, YouTube, or at good morning hr.com. It's been over 9 months since the Pregnant Workers Fairness Act went into effect, and the final implementing regulations still have not been published, despite a provision in the law that the EEOC issue final regulations before the end of 2023. But just because the EEOC hasn't complied with the law, doesn't mean that employers don't have to. So joining me today to discuss employers' responsibilities and employees' rights under the Pregnant Workers Fairness Act is returning guest, Vianney Braun. Vinae is an attorney and shareholder in the law firm Decker Jones PC and heads their labor and employment law group.
Mike Coffey:She's represented employers for more than 30 years. She's been included in all kinds of lists, including best lawyers in America, super lawyers, the Fort Worth 400, and Great Women of Texas. She's also a year one guest on Good Morning HR about a 120 episodes ago. So welcome back to Good Morning HR VNA.
Vianei Braun:Thank you so much for having me, Mike, and thank you for the very kind introduction.
Mike Coffey:So let me add a a rare caveat here that we're recording this episode on April 1st, and it's not an April fools joke, but it's scheduled to release on April 18th, about two and a half weeks later. So things could certainly change in the next two and a half weeks, but probably not too significantly. But we'll figure it out if it does, and we'll figure out a way to get you updates if we need to. Is that fair, Bina?
Vianei Braun:Well, I I always think it's Murphy's Law. I predict that the fact that we're doing this will cause the EEOC to finally issue those final regs, and, they may be significantly different than what we think. But, we just have to soldier on with what we've got.
Mike Coffey:Well, if that's if that is the case, we should have done it in December and and just, you know, got them on the ball right away. But
Vianei Braun:Exactly.
Mike Coffey:So let's just start with an overview. What is the Pregnant Workers Fairness Act?
Vianei Braun:Great question. And I think I'm gonna proceed just calling it PWFA because Yeah.
Mike Coffey:Let's do that. That.
Vianei Braun:Let's say pregnant workers fairness act. You know, it is a good thing, and it fills a gap in existing law. So, you know, despite the fact that I represent employers and I usually, you know, kind of push back on all the regulatory burdens that get placed on employers, I do think this is a good thing. And I believe that's why it was fairly noncontroversial. The PWFA was part of the Consolidated Appropriations Act that Congress passed, going into 2023, and president Biden signed it on December 29, 2022 with an effective date of June 27, 2023.
Vianei Braun:So the law has been in effect. We're getting close to a year now. And the fact that the final regulations are not in place doesn't mean that employers are excused. So the law is indeed in effect. And, fundamentally, the law says that covered employers, which are the same covered employers that are covered under title 7 and the ADA, meaning 15 or more employees.
Vianei Braun:If you're a covered employer, you are supposed to reasonably accommodate an employee's known limitations relating to pregnancy, childbirth, or other related medical conditions provided that those accommodations do not cause an undue hardship to the operation of your business. So, you know, there there are some key phrases in there that we'll be talking about. But overall, you know, it it's a good thing because there was a gap where to be covered under the ADA, you had to be, you know, substantially disabled and pregnancy itself was not considered a disabling condition. So in in a way, it's gonna give us a a little bit more consistency across the board.
Mike Coffey:So the law went into effect in June of 2023, and we don't have the regulations. Talk to me like I'm not a lawyer because I'm not. So I've got the statutes over here, and I've got the implementing regs over here. How much daylight could there really be between those two things?
Vianei Braun:Well, the trick with the regulations is there are a couple of things that I think employers found startling. The most dramatic one was the idea that if you're accommodating an employee due to pregnancy and and and, you know, the inevitable childbirth, that you might actually have to suspend an essential function of the job. That's new. The ADA told us that, okay. If you have an employee with a disabling condition and they're otherwise qualified to do the job, that you should reasonably accommodate them, but only if they can perform all the essential functions of the job with or without reasonable accommodation.
Vianei Braun:The PWFA adds this twist that, okay, if it's a pregnancy related condition, which presumably is eventually going to resolve, that perhaps the employer is going to be obligated to suspend 1 or more essential functions of the job. An obvious example would be somebody who works, you know, where there's heavy lifting involved and the employee's been told, okay. During your pregnancy, you've got a 20 pound lifting restriction, but the job is routinely, 50 pound, lifting job. And when you use that example, that makes sense. Okay.
Vianei Braun:Well, during the the pregnancy, we're just gonna make sure that this person sticks with the 20 pound lifting restriction.
Mike Coffey:Right. We'll do light duty, what we would do for light duty or something like that.
Vianei Braun:Exactly. But you can see where that's gonna get tricky. And what was startling in the proposed regs was the time period where the EEOC said, okay. You know, you can suspend an essential function if you think the person's gonna be able to perform it in the near future, but then they went on to say near future is, the length of a pregnancy, so 40 weeks. And then there was yet another sentence in there.
Vianei Braun:Again, these are the proposed regs. They're they're not finalized, but there was a sentence suggesting that there might be 40 weeks, you know, during the pregnancy, then there would be childbirth, and there might be yet another qualifying limitation due to childbirth, and maybe that's gonna last another 40 weeks. So we're talking very long periods of time where there might be, like you said, something that looks like light duty, and I think that's where the challenge is going to be. Because as an employer, okay, all of this sounds great in the abstract, but let's go back to my employee who's usually lifting £50, but she can only lift £20. And so all the heavy stuff goes to her coworkers who start getting resentful, and then it's a problem for the manager.
Vianei Braun:You can see where there are gonna be some challenges along the way.
Mike Coffey:So does the PWFA change that essential duties thing, or is that something that's like regulatory interpretation in the proposed regulation. So I guess what I'm saying is essential duties that, you know, that that idea that a con removing essential duties would be an appropriate accommodation. Is that in the statute, or is that something that came really out of the regulations?
Vianei Braun:I believe it's in the statute, and that's when you asked me something that I I don't know that I can swear to, but I believe that's a key piece of this legislation that, you know, we we understand that pregnancy and childbirth related limitations are typically going to be of limited duration. Although the duration is not, you know, a week or 2, it may be, you know, like we were talking about 40 weeks plus. And that that's going to be different from the ADA because you may need to actually suspend that essential function requirement for that person. And let me add one more thing on. It is definitely in the law where it says that you cannot, force someone to take leave if there is a different accommodation that might allow them to continue working.
Vianei Braun:So I think Congress anticipated or at least the EEOC did that some employers might be like, hey. Go home. Don't worry about it. Well, you can't force that on someone if that's not what they agree to.
Mike Coffey:So, ostensibly, because we're putting the podcast out, at some point in the next 2 weeks, we'll get final regs. But if we don't, should an employer who hasn't really paid attention to this, and I think most employers really haven't, I mean, it's not on the agenda at most of the conferences I speak at, like, ADA is on every agenda and title sevens on most of the agendas, all those things, FMLA. But I'm not seeing PWFA on the agendas, and I think a lot of employers are still gonna be surprised when this becomes law. Should they be taking just a wait and see approach? Is this something that, you know, employers are probably pretty safe saying, yeah, well, until the regs come out, we're not gonna worry about it.
Mike Coffey:Or do they face real risk right now by not complying with PWFA?
Vianei Braun:I think there is risk right now, and I agree with you that somehow this flew under the radar. And so I think employers maybe just felt like, oh, we're waiting on some final regulations, or maybe they just weren't paying attention at all because, frankly, it was fairly noncontroversial because it was bundled into the appropriations act and everything passed with large margins. And also just the idea that, oh, who doesn't wanna accommodate your your pregnant workers? Right? So the lack of controversy, I think, has made employers a little bit lax.
Vianei Braun:The posting requirements are in place. So, you know, the updated PDFA, PWFA posters should be up. And, I'm sure I have a bunch of clients who have not updated employee handbooks. I don't think that's, like, a fatal risk. You know?
Vianei Braun:That's not something that's a red flag urgent project. But if an employer is updating an employee handbook anyway, absolutely, I think a policy should be included. And if you go to the Society For Human Resource Management website, they did put out a very nice, simple one page policy that just talks about, okay, you know, acknowledges we're gonna do the PWFA accommodations. And the policy goes on to talk about some of the very basic things that the law suggests really should not be controversial at all, such as, you know, having water at workstations, being allowed to sit or stand even if that's, you know, the reverse of what you're supposed to be doing normally in that job position, taking breaks, flexible work schedules. So I I do think a policy should ideally be put out by most employers.
Mike Coffey:So I wanna get into the meat and potatoes around the the law and its components. But the other weird thing that's happened is that here in Texas, a federal judge issued an injunction against enforcement of the PWFA, at least I guess, against the state of Texas, saying it was unconstitutional. What's all that about?
Vianei Braun:That's a great question, and I think that's yet another confounding factor where, you know, I'm sure I'm not the only one that sometimes gets my news only by headlines during the day. You know? I'm I don't have time to click through on everything. Nobody does. And I think a lot of folks saw a headline saying, oh, PWFA enjoined in Texas and thought, oh, good.
Vianei Braun:We don't have to deal with this right now. That is not what happened. The, case in question was heard by judge Hendricks out of Lubbock. That's a northern district federal court judge. And And it was a very specific question about whether Congress had properly waived the state of Texas's 11th amendment immunity because typically, a state, you know, has sovereign immunity and you can't be sued unless the state consents.
Vianei Braun:But the federal government can waive that sovereign immunity for the state provided they do it properly. And, Ken Paxton's folks found an interesting argument because that consolidated appropriations act was actually passed with a lot of proxy votes that were permitted under COVID era procedures. So, if I have my numbers right, I think there were only 205 members of the house of representatives who were present when the PWFA was passed. That's less than the 2 18 half that you need for a quorum in the house of representatives. So that was the very technical issue where the state of Texas through the attorney general said, okay, feds, you can't enforce the PWFA as to the state of Texas and its divisions and its state agencies because you did not properly waive our 11th amendment sovereign immunity.
Vianei Braun:That's all very technical, but the the important bottom line is there is an injunction in place only as to the EEOC and the federal government enforcing the p PWFA against the state of Texas, its divisions, and its agencies. So most of our listeners are probably in the private sector, and the PWFA still applies to them in Texas. This was a specific governmental immunity issue, and it is also up on appeal.
Mike Coffey:And we do have I'm thinking of a few clients who I know listen, we have a number of, listeners who are at the municipal or county level of government, and I'm maybe asking you to be more of a constitutional scholar than than you wanna be, but would that injunction apply to them as well, or is this just state level agencies?
Vianei Braun:I believe it's state level, and that's it. You've got good questions today, Mike. You know, I was actually
Mike Coffey:That's my magic gear, my superpower asking dumb questions of smart people. So
Vianei Braun:Yeah. Making the smart people feel not so smart, I guess. Yes. Because, you know, a school district, for example, that's a political subdivision of the state. If I were arguing in favor of a school district, I would say, yes.
Vianei Braun:The injunction applies. Have I dug into that issue as an attorney? I have not. So I think there's an open question. And I also wonder whether just as a practical matter I mean, it's a really interesting case, but I wonder whether the 5th Circuit may ultimately come back and say, well, nice try, but, you know, we're dissolving the injunction.
Mike Coffey:Okay. So we talked about essential functions a minute ago. Is there a difference in the definition of like, we're all used to the Americans with Disabilities Act. Is there a difference between essential functions under ADA versus essential functions under PWFA?
Vianei Braun:There is not. And so that's one nice thing about the PWFA. They really slotted it in very effectively. The enforcement mechanism and the coverage question is the same as under title 7. And then to your point, the undue hardship interactive process, all of that is equivalent to what we already know and love under the Americans with Disabilities Act.
Vianei Braun:So that I think is one one good thing where at least the cadence of how we analyze these issues is quite familiar to HR folks and and to employers. So I think that's positive. I guess on the the negative side, you know, we've seen, I think, a little bit of a a trend in the court cases towards a really high definition of undue hardship where, you know, if an employer comes back and says, gosh, you know, you've asked us to do something that we think is really, you know, a hardship on us, a hardship on coworkers. And, I feel like the trend now is towards saying, well, look. If you're a larger organization, if you have significant resources, we're not gonna let you just wiggle out of something saying it's hard.
Vianei Braun:And that's consistent with the larger trend. I'm getting a little off topic here, but the Graf versus DeJoy case that came out of the Supreme Court talking about religious accommodation.
Mike Coffey:Right. That's what I was just thinking about. Yeah.
Vianei Braun:Yeah. Where they absolutely, you know, overturned past precedent where it used to be like, oh, you know, it was an undue hardship to accommodate someone's religious practice if it was more than just a de minimis change. And they completely threw that out the window and said, no. We expect employers to accommodate religious practice, now pregnancy, and, of course, disability, unless it is a significant burden given the resources and abilities of that particular employer.
Mike Coffey:And let's take a quick break. Good morning HR is brought to you by Imperative, bulletproof background checks with fast and friendly service. For 25 years, Imperative has helped risk averse clients make well informed decisions about the people they involve in their business. Whether that means very thorough pre employment background checks, due diligence for family offices or private equity firms, or any other kind of business transaction, if there are people involved, there's risk involved. We help businesses mitigate that risk.
Mike Coffey:You can learn more at imperativeinfo.com. If you're an HRCI or SHRM certified professional, this episode of Good Morning HR has been preapproved for 1 half hour of recertification credit. To obtain the recertification information, visit goodmorninghr.com and click on research credits. Then select episode 144 and enter the keyword pwfa, that's p w f a. And if you're looking for even more recertification credit, check out the webinars page at imperativeinfo.com.
Mike Coffey:And now back to my conversation with Dina Braun. So we talked about the possibility that the statute and then the implementing regs, if they ever show up, will be really different in that from ADA that they expect us to, at least at some at possibly in some position or in some situations, to remove those essential functions from the job on a temporary basis for 40 weeks or, you know, who knows how long depending on, you know, if you have a c section, it may be even longer than or some sort of difficulty in your pregnancy versus somebody, you know, somebody who doesn't have those challenges. So it could go, you know, a year maybe or longer. So, are there specific how do you know when removing that essential function would qualify as an undue hardship then for that employer?
Vianei Braun:Well, that's gonna be the the the challenge. And let me approach this, you know, kind of from the inception. I think the first challenge before we even get to the the nuances of your very good question, employers are gonna be relying on frontline supervisors to even identify these issues.
Mike Coffey:Oh, lord. Help us.
Vianei Braun:Yeah. The the proposed regulations said, oh, hey. This request for help doesn't need to be in in writing. I mean, it's a known limitation just meaning that it's somehow been communicated to the employer, maybe even through a coworker or, you know, union representative or or whoever. And so I think that's gonna be the the first challenge is training frontline supervisors and saying, look.
Vianei Braun:If you've got an employee who's pregnant and has some issue about either going to medical appointments or, you know, has a telework request, you need to have your consciousness raised where, you know, some supervisors might say, oh, no. We don't have telework for that. Sorry. Go back to work. And that's the first line of defense where they're going to have to be aware enough to even escalate the issue to HR.
Mike Coffey:Well, which is as a man who has years ago, I learned my lesson. You never ask a woman when are you due. Right? I mean, you know, and I've I made you know, I made it once, and that's burned into my brain. So if I'm a frontline supervisor and, you know, somebody says, I've got a doctor's appointment, I need to go see my doctor next week, and I know I've been trained by HR not to ask, what are you seeing your doctor about?
Mike Coffey:If there's not some declaration that, hey, I'm pregnant, how's an employer, especially a frontline manager, going to navigate that that minefield?
Vianei Braun:You you have all the good questions today, my friend. That's really dicey, especially because, you know, like the ADA, the PWFA also has this confidentiality provision basically saying, hey. You know, you don't go disclosing our employee's condition unnecessarily. So that is going to be the really difficult balance, and I don't think there's any one magic answer to your question. I think it does go back to what we were talking about that this has flown under the radar.
Vianei Braun:And, really, you know, as much as I think employers resist sometimes pointing things out to employees because they don't want a bunch of accommodation requests, In this case, I think it's a good thing to just make sure that there's some communication. So let's say you haven't done anything yet as an employer. Put up the posters, add a policy to your employee handbook, email blast out the new policy to employees so they they know what it is. And, hopefully, then, you know, you kind of shifted some of the burden onto the employee needing the accommodation. If they're aware and you can show that you made your workplace aware, then it's reasonable to expect them to come to either their direct supervisor or HR.
Vianei Braun:I agree with you that I if I'm I haven't had to train on this yet, but if I'm talking to a group of supervisors, I am not giving them the message to like, if someone's putting on a little weight to go ask questions, that is not a good idea. So you you hit on a tricky topic indeed.
Mike Coffey:So should I mean, we if it's an ADA accommodation, I think most employers say contact HR. We don't want our frontline supervisors even playing with this. You know? You'll you'll cut the red wire, not the blue one, and it'll all blow up. So is that what you think the policy should be?
Mike Coffey:Because, I mean, a lot more people get pregnant than have ADA, you know, related issues in most workplaces, you know, so do we need to hire a new is there gonna be like, we have ADA specialists. Is there gonna be a PWFA specialist in HR now just to handle this, all of these conversations?
Vianei Braun:Hopefully, the same ADA specialists can figure it out, but that raises a really good point about, you know, what are you expecting of your supervisors. Because the PWFA does also have a provision talking about, look, you know, we don't want you delaying an answer on these accommodation requests. And they even list out some of these basic things where I think the intention of the law is a supervisor should be aware that for something basic like, hey. I know we're supposed to stand at this teller line and not have water with us, but I really need a stool and I really need some water, that a supervisor in that instance should be empowered to say, absolutely, and let me go find you a stool and not, you know, go through the rigmarole, especially for some of these organizations that if it's an ADA accommodation request, they're kicking it out to Unum or some other third party that actually handles the process. And that's that's not okay if someone's just asking for water and a stool.
Mike Coffey:Okay. So, but hopefully, we'll have a process where HR is aware of it at the least and and looks at okay. And we're we've got good documentation about, okay, this is the commendation we've made. What about and and I know this sounds Farfetch, but what about I don't think you're really pregnant. I think you just wanna sit on sit on a stool today.
Mike Coffey:Can we send them to the company's doctor? I mean, is that why we're gonna get down to that? I hope not. I hope most lawyers, you know, But, you know, can we, you know, get a second opinion on that pregnancy or, oh, here's a stick. Go pee on this and bring it back in 10 minutes to HR.
Mike Coffey:I don't want that job in HR.
Vianei Braun:No. And, I mean but it sounds like we're making jokes here, but those are some really real question. And, I think that may be why the EEOC is struggling with getting these regulations finalized because in the regs, there are, you know, provisions saying, well, you know, depending on the circumstances, you might be able to ask for documentation, but don't ask for it unnecessarily. So, yeah, they they don't want women being sent by their employers like, well, I'll believe you when I see the sonogram. That's clearly not kosher, and I think the EEOC would interpret that as some kind of either retaliation or just coercion not to use the benefits of the PWFA.
Vianei Braun:And so to your hypothetical, I mean, I think employers, to some extent, are gonna have to take things at face value. And it's not it's not a panacea, but you hope that going back to the example, you know, a teller asks for some basic accommodations, frontline supervisor grants them. You hope the frontline supervisor remembers to tell HR, which doesn't always happen. But, hopefully, supervisor tells HR, HR that HR business partner, you know, marks their calendar, and they're going to check back with this employee periodically. Hey.
Vianei Braun:You doing okay? Anything else you need? And if it was a fabrication, you know, at some point, these check ins might shame the employee into saying, oh, gosh. Never mind.
Mike Coffey:But if we get to as an essential job function, like, you know, and it gets down to the point where I'm gonna remove like you said, that lifting, but, you know, I I can't lift more than £20 now. It would probably be reasonable for an employer at that point to say, okay. Here's our p w the PWFA version of the ADA medical inquiry. Go get your doc to tell us what your limitations are. Would that at that point, would that be more appropriate?
Vianei Braun:That would be appropriate. And that, I think, you know, the reason it's appropriate is you don't wanna miscommunication. And, you know, someone just verbally says, oh, it's a 20 pound lifting restriction. And then, you know, there's some incident or injury and you find out that the doctor's note would have said £10, you know, the employer does need documentation on that type of thing. So lifting restriction, I would think for exposure, you know, there's some jobs that maybe have exposure to certain chemicals where the health care provider is saying, hey.
Vianei Braun:Don't have that exposure. That level of detail, I think it's reasonable for the employer to ask for documentation. And, hopefully, you know, the HR personnel handling this can ask for documentation in a way where they're advocating for the employee and saying, hey. Look. Help me help you.
Vianei Braun:I I need this information, as opposed to you know, what I'm worried about is maybe some smaller employers that don't have dedicated HR staff where the CFO is trying to wear the HR hat too and they're getting frustrated with someone. I think that's where the biggest challenge is gonna be, the employers that are over the 15 employee threshold, but aren't even FMLA covered. So between 15 50 employees, and they just don't have the infrastructure to handle this kind of stuff.
Mike Coffey:So we've talked about lifting and water, water breaks or bathroom breaks, things like that. What about will do you think remote work or flexible scheduling or hybrid or any of that will will will come into play for for PWFA covered employees?
Vianei Braun:Absolutely. And that's probably the piece that I'm the most concerned about, especially because we've all seen, you know, these various problems that have arisen after the pandemic where I I have a number of clients that are struggling to get people back to the office even as we speak, and here we are in 2024, and it was a 2020 pandemic. And that's where I think it's just gonna be so tricky. You know? If if an employee says my doctor has told me to work from home because of this complicated pregnancy, and it really is you know, it it comes up early in the pregnancy where we're talking about months that this employee is teleworking, then I think it becomes really challenging if then an employee in the same department, let's say, has some kind of disabling condition that causes bladder incontinence, let's say.
Vianei Braun:And they just say, look. It's embarrassing. I I I just wanna work from home. And there's this slippery slope where, you know, it was clear under the PWFA. Okay.
Vianei Braun:We'll let this person telework, and then they'll deliver the child and recover and and come back. But then it morphs into a situation where it's gonna be very hard to deny the employee with what may be a permanent disabling condition, telework, and now you've taken a non telework position and converted it into a telework position, and some of my clients do not like that at all.
Mike Coffey:Well, right. Because we're kind of demonstrating, right, by letting this this pregnant worker take off work and work worker mode or do whatever. And it's especially if it's successful. And so we want, for culture and for all these other purposes, people to be in the office, let's say. And now we've proven it works.
Mike Coffey:I mean, that's kind of what some of the arguments for the current ADA, you know, stuff about remote and hybrid employees goes, well, it worked fine during the pandemic. Your productivity was just fine, and now you're trying to drag everybody back. And this employee is, has got some other issue that, you know, suggests remote work is feasible. Now we've proven it with these PWFA covered employees. And so now, like you said, you know, somebody with some other issues where, for whatever reason, it would make sense and it might have seemed like an undue hardship right up to the moment we proved it works with the PWFA.
Mike Coffey:That kinda puts an employer in a rock and a hard place. Right?
Vianei Braun:I agree. And so the the slippery slope issues are what I'm concerned about. And not only telework, but just in general where, okay, if we're talking about up to 40 weeks of, oh, don't worry. In fact, somebody else will do all the lifting. You just do this other stuff.
Vianei Braun:I mean, that's a long period of time. And have you just sort of created a different job, a permanent light duty position? You know, I I think it's it's gonna be challenging for employers to just manage the details of this. So even though it's a good thing and we all want you know, especially from a retention standpoint, I mean, you want women of childbearing age to feel like, oh, I'm in a great place, and they will work with me. And if I have a pregnancy, they're there for me and I'm loyal.
Vianei Braun:All of that's a good thing, but the devil is in the details always.
Mike Coffey:So what about performance? And, oh, I'm walking on eggshells here as a 55 year old man. But, if because or related to the pregnancy and whatever issue somebody may be having, or maybe it's just a normal pregnancy and dang it, I'm just tired by 2 in the afternoon, you know, and you've got those kind of, you know, and maybe it's affecting performance. Is performance still gold standard? You still have to perform at this level, or can that slide out too, as, you know, maybe, you know, production at 80% instead of a 100% of what's expected, slide out as part of that essential functions change?
Vianei Braun:Another great question. You know, as an advocate for employers, I'm always saying, hey. You know, the job comes first, but it depends on a PWFA situation because it depends on the accommodation. If someone has said, hey. Look.
Vianei Braun:You know? It maybe it is just a normal pregnancy, but with significant fatigue. And let's say they ask for an accommodation saying, look, I'd really like to drop to, you know, 6 hours a day instead of 8 hours a day, and that's approved. Well, then, of course, you can't ding them, Leta. Let's say it's a sales call employee and they're not making a 100% of their sales calls.
Vianei Braun:Well, of course not because they're down to a 6 hour work week, not an 8 hour work week. So, you know, it would be very risky for an employer to hold that person to the same call quota standards.
Mike Coffey:Mhmm.
Vianei Braun:So I think, both managers and HR are going to have to delve into the details of, okay, is this an excusable performance failure based on what the accommodation is that we agreed upon, or is it something else? Is it okay, I'm fatigued, and I just flat out forgot to put in the order from our biggest customer. I mean, sorry you're fatigued, but there's no excuse for that.
Mike Coffey:Okay. So well, that's we'll see what the implementing regulations say, but that's at least some comfort to an employer to say, we you know, for for whatever if it's time, how much time we're paying you for, you've got to perform at the level we expect you to perform. Yeah. You're not gonna get an accommodation for them. So we don't have final regs, and we're at our 40 weeks right now.
Mike Coffey:We're almost up, we're on our, our time limit. But as a parting shot, what do you think employers ought to be doing right now? We don't have the final regs, so, what should be the things they're doing right now to protect themselves and make sure that they're treating their their employees fairly under the law?
Vianei Braun:I think they should just go ahead and do full implementation if they haven't already. So that would be, you know, to the extent people look at posters in the break rooms. I don't know if anybody does anymore, but put the posters up. Go ahead and update employee handbooks, and, you know, you may not have to update the whole handbook if you just put out a PWFA policy. I think that's sufficient.
Vianei Braun:And, hopefully, most employers are doing some type of supervisory training periodically anyway. And so I think it's a really important topic for training for supervisors because that is that's really a kind of nuanced line to walk, to be alert and ready to just jump on even a verbal. It might just be a gripe, you know, that, oh, gosh. You know? I'm 3 months pregnant and having trouble with this job function.
Vianei Braun:Maybe it's not, you know, couched as an accommodation request, and the supervisor has to be alert for those types of things, but also not getting into people's business. And so, yeah, if no one said anything and work is going great and maybe one of the direct reports kinda looks pregnant, but the supervisor's not sure. I I think they leave that alone.
Mike Coffey:No. Well, that's good luck to the front line supervisors on all this, but, that's all the time we have today, anyway. We'll see what happens in the next few weeks, if we can get this out without, final regs coming out. But thank you for your time again, VNA.
Vianei Braun:Thank you so much for having me. Good to see you.
Mike Coffey:Likewise. And thank you for listening. You can comment on this episode or search our previous episodes at goodmorninghr.com or on Facebook, Instagram, or YouTube. And don't forget to follow us wherever you get your podcast. Rob Upchurch is our technical producer, and you can reach him at robmakespods.com.
Mike Coffey:And thank you to Imperative's marketing coordinator, Mary Anne Hernandez, who keeps the trains running on time. And I'm Mike Coffey. As always, don't hesitate to reach out if I can be of service to you personally or professionally. I'll see you next week, and until then, be well, do good, and keep your chin up.