Recent Federal Changes Impacting Pregnant and Nursing Workers

Recent Federal Changes Impacting Pregnant and Nursing Workers

by | Apr 13, 2023 | General, Labor and Employment, School Management

In an attempt to create new legal protections and remedies for individuals who are pregnant or nursing, Congress recently passed two acts, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA), which will expand the number of nursing and pregnant workers granted protections, including school employees.

Providing Urgent Maternal Protections for Nursing Mothers Act

In 2010, the Break Time for Nursing Mothers Act was signed into law, which required employers to provide nursing mothers a reasonable break time in a private and shielded place to express breast milk for a minimum of one year following the child’s birth. However, these requirements applied only to employees not exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement.

On December 29, 2022, President Biden signed the PUMP Act into law, which expands the rights granted by the Break Time for Nursing Mothers Act to include exempt employees of covered employers. This change, which adds over nine million workers, will now grant all salaried employees, such as teachers, similar protections.

The PUMP Act, much like the Break Time for Nursing Mother Act, requires employers to provide (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion. Additionally, the PUMP Act authorizes an aggrieved employee to bring a claim against an employer who violated the PUMP Act, as well as prohibits that employer from retaliation against the employee as a result of that claim. Furthermore, the PUMP Act has adopted all available remedies under the FLSA, such as reinstatement, promotion, payment of wages lost, and compensatory damages. The U.S. Department of Labor published a fact sheet that lays out additional information regarding the PUMP Act. For example, the fact sheet discusses how an employee may be compensated for break time to pump, whether that be through paid break time or being completely relieved from their duties. The DoL Fact Sheet can be found here.

Pregnant Workers Fairness Act

In addition to the PUMP Act, Congress passed the Pregnant Workers Fairness Act (PWFA), which will go into effect June 27, 2023. The Pregnancy Discrimination Act of Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits employers from discrimination on the basis of pregnancy and requires an employer to treat pregnant employees in the same manner as other employees who are similar in their ability or inability to work. While this act does prevent discrimination against pregnant employees, it does not require an employer to comply with any accommodation requirements. This gap between the prohibited discrimination and lack of accommodation requirements has now been filled by the PWFA.

Under the PWFA, Congress has made it unlawful for an employer with 15 or more employees to:

  • Require an employee to accept an accommodation without a discussion about the accommodation;
  • Deny a job or other employment opportunities to a qualified employee or application based on the person’s needs for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA; and
    Interfere with any individual’s rights under the PWFA.

These restrictions under the PWFA will protect employees and applicants of covered employers, which include schools, who have “known limitations related to pregnancy, childbirth, or related medical conditions.” In addition to these restrictions, the PWFA noted that an individual may still be considered a qualified employee if the inability to perform an essential function is for a temporary period, the essential function can be performed in the near future, and the inability to perform the function could be reasonably accommodated.

Recent Litigation Surrounding Pregnancy Discrimination

Congress’ actions come following recent litigation where the Equal Employment Opportunity Commission (EEOC) filed suit against a nursing and rehabilitation facility. The EEOC asserted that the facility had established policies requiring employees to inform the company when they were pregnant as well as obtain a note from their doctor releasing them to work without restrictions. The EEOC additionally alleged that the facility denied pregnant employees that had restrictions with reasonable accommodations and went so far as to terminate them, while other employees with similar restrictions were provided accommodations.

The suit, which was brought in June of 2021, came to a close April 12, 2023 with a decision finding in favor of the EEOC. The decision ordered the facility to pay $400,000 split between 11 employees, as well as issued a decree that would prohibit the facility from discrimination on the basis of pregnancy in the future, including denying pregnant employee’s modifications and a requirement that pregnant employees obtain a doctor’s note.

What does this mean for your district? To comply with the PUMP Act and the PWFA, districts should update their reasonable accommodation and nursing employee break policies to reflect the new requirements. Additionally, districts should designate an adequate space for employees to express breast milk that is in compliance with the PUMP Act, meaning the space must be (1) reasonable break time to express milk, and (2) a private location that is not a bathroom and that is shielded from view and free from intrusion.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On the Call Podcast: Parent Participation

by | Apr 11, 2023 | General, Special Education

On The Call: Parent Participation

by Jeremy Neff & Erin Wessendorf-Wortman

Determining the right amount of parent participation can feel like rowing a boat in a thunderstorm. Jeremy and Erin try to help you steer the boat by identifying what is required and needed versus what is not, and how to find the right balance of engagement and communication throughout the process. They share the details of a decision from the United States Court of Appeals for the Sixth Circuit that highlights the importance of ensuring the required procedural safeguards are in place at the frontend of the process so the relationship doesn’t go down like the Titanic.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

Looking for more information on this topic? Jeremy will be revisiting it during his “Building Parent Partnerships for Meaningful Participation” presentation at the LRP National Institute in New Orleans the week of April 17. He will also lead a session on “Coaching the Coaches and Advising the Advisors” regarding Section 504 compliance in extracurricular activities. Pam Leist is providing a half-day session on “All Things Autism” at the Post-Institute Symposium. This is the third year running with at least one member of the Ennis Britton Special Education Team speaking at this national conference.

Update: USDOE New Proposed Rule on Title IX

Update: USDOE New Proposed Rule on Title IX

by | Apr 7, 2023 | General, School Management

On April 6th, the U.S. Department of Education proposed a rule that would build upon Title IX and apply to federally funded K-12 schools. The proposed rule would prohibit a blanket ban or a “one size fits all” policy that bans transgender students from participating on teams consistent with their gender identity. While prohibiting categorical bans, the policy would provide schools some flexibility when determining eligibility criteria. Specifically, the Department proposed that any adopted criteria must be substantially related to the achievement of an important educational objective and minimize harms to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied. 

In a released Fact Sheet, the Department stated that to comply with the above requirements and to ensure fairness and prevent sports-related injuries, a school must look at the sport, the level of competition, and the grade or education level. The Department further clarified that under these eligibility factors, elementary school students would generally be able to participate in school sports according to their gender identity. However, as competition rises in high school level sports, the Department stated schools may assess the sport, level of competitiveness and the age of student more and may limit participation so long as that limit meets the regulation’s requirements.

This proposed rule came on the same day that the U.S. Supreme Court refused to approve West Virginia’s request to enforce a state law that would ban transgender women and girls from participating in school sports teams consistent with their gender identity. The request, which landed itself on the Court’s emergency docket, came after a transgender student who wanted to participate on the girls track team challenged the state law. After a temporary order from the Fourth Circuit Court of Appeals which precluded the law from being enforced while the case was being considered, West Virginia’s Attorney General sought emergency relief from the Supreme Court, but the Court refused to grant the relief.

What does this mean for your district? There is still a lot to be decided on this topic, both from a regulatory standpoint as well as with case law. The U.S. DOE proposed changes will be published to the Federal Register, where it will be open for 30 days of public comment. Following the 30 days the rule may be altered or published depending on comments received. As written, the regulations will require deliberation before restrictions or bans are put in place, and will make restrictions or bans in less competitive activities (e.g. younger students, junior varsity) more difficult to support. This level of local control will ensure that this sometimes divisive topic remains something districts will continue to have to work through. As for the Supreme Court Decision, the general trend in sports-related cases still points toward discouraging bans on transgender athletic participation. Decisions like this case might present a legal barrier for Ohio’s most recent legislative efforts to address transgender athletic participation. Stay tuned for future updates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On the Call Podcast: MDR Exceptions

by | Mar 27, 2023 | General, Special Education

On The Call: MDR Exceptions

by Jeremy Neff & Erin Wessendorf-Wortman

Was it Mrs. Peacock in the library with the candlestick? Sometimes dealing with the exceptions under a MDR can feel like playing a game of Clue. Jeremy and Erin help solve some of the mysteries when dealing with the three primary types of exceptions . They also highlight a recent case in Texas that addresses the importance of proper documentation and training so you are able to accurately determine when one of the exceptions applies that allows for removal even when the behavior is a manifestation of the child’s disability.

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

On the Call Podcast: Parent Advocates

by | Mar 14, 2023 | General, Special Education

On The Call: Parent Advocates

by Jeremy Neff & Erin Wessendorf-Wortman

The addition of a parent advocate can quickly change the dynamic of IEP planning meetings from sweet to sour. Jeremy and Erin discuss the law surrounding  IEP team membership specifically defined under IDEA and how you do or don’t define “expertise and specialized knowledge” of the child when an advocate is brought into the committee group. They share a recent case out of Pennsylvania which highlights the rights of school administrators in certain situations related to parent advocates. Practical tips – and tools – are included in the discussion which can help make the process more of a treat, less of a trick.  

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.

On the Call Podcast: MDR Complete. Now What?

by | Feb 28, 2023 | General, Special Education

On The Call: MDR Complete. Now What?

by Jeremy Neff & Erin Wessendorf-Wortman

Keep Calm and Just Keep Serving. Understanding the obligation to provide services after an MDR team decision is not always clear to all school employees. Erin and Jeremy discuss the “Black Letter Law” related to MDRs and what happens when MDR teams venture into the realm of behavior not being a manifestation of a student’s disability. teams.  They share a recent case from South Dakota which highlights the importance of the IEP team’s involvement in determining what services will be provided in order to meet the IEP goals and the general education curriculum.  

You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.