Bill seeks to clarify workers’ rights for pregnant, lactating employees

Legislation closes loophole in federal law, extending protection for management-level employees

Published February 18, 2020 by Julia Raimondi | Capital News Service

For employees who are pregnant or lactating, their workers’ rights are sometimes viewed as vague and can be difficult to discern for them and business owners alike.

In Virginia, Sen. Jennifer McClellan, D-Richmond, hopes to clear things up once and for all.

Her bill, SB712, is designed to expand upon the federal law that protects the rights of pregnant and lactating employees. This includes providing more specific guidelines for both employees and employers to help determine what is workplace discrimination and what is not.

The bill has passed through the Senate and is now making its way through the House of Delegates before it goes to the governor to be signed into law.

A significant issue that McClellan has with the current federal law is that it does not provide specific enough language to determine what is a reasonable accommodation. The only guidelines so far have come from the U.S. Supreme Court case Young v. United Parcel Service, which determined that if an employer provided accommodations for other employees but not for the one that is discriminated against then they have broken the law, McClellan said.

But the responsibility of proving that ends up resting on the employee, which can be difficult to do while pregnant.

“When you’re pregnant you have a short window for accommodations to be made, so you want that case resolved if you’re being discriminated against while you’re still pregnant,” McClellan said. “The ultimate requirement with this bill is you need to make reasonable accommodations. It will give you guidelines on what is a reasonable accommodation and what is not. Small businesses find that helpful.”

This bill also closes the loophole in the federal law that does not protect management-level employees that are lactating. Currently, the bill only protects hourly employees.

“I wanted to make clear, currently under federal law, under FLSA, hourly employees for any employer, regardless of size, employers have to already provide break time and a space that is not a bathroom to pump,” McClellan said in a committee meeting. “The issue is there is a gap in federal law for management workers who are exempt under FLSA.”

At the hearing for the bill in the Senate Education and Health Committee on Feb. 6, there were concerns from some members of the committee and from Nicole Riley, the state director for the National Federation of Independent Business about the impact the bill would have on small businesses.

Committee member Sen. Stephen D. Newman, R-Lynchburg, was worried about the possible impact of punitive damages.

“The punitive damages is unusual and sticks out in this bill,” Newman said. “Virginia generally doesn’t put those in here. Why do we have to go all the way to punitive damages and not just attorneys’ fees or something like that?”

In response, McClellan agreed to an amendment to the bill that would exempt businesses from the possibility of punitive damages if they had less than 15 employees and more than five. But she also pointed out that the bill is designed to lessen the chances of discrimination cases reaching the litigation stage.

“In the states where they have adopted legislation similar to this, which spells out what the responsibilities are, it has reduced litigation,” McClellan said in committee. “Low-wage workers have a harder time finding an attorney. We’ve found when you have an attorney who can go to the employer and talk about what accommodations need to be made, 90% of the time they reach an accommodation that works for everybody.”

This bill has found support on both sides of the women’s reproductive health argument.

Virginia Society for Human Life president Olivia Gans Turner testified at the committee meeting, announcing her organization’s support of the bill since it provides critical information on the rights of young pregnant employees who might otherwise feel like their pregnancy is a burden on their employers.

“In our circumstances, from VSHL’s concern, we’ve listened to mother helping centers around the state,” Gans Turner said in the meeting. “We’ve actually heard them discuss women who feel that they are obliged by their employers to make a decision between a pregnancy and their job. In 2020 that should be unthinkable.”

The committee voted to pass the bill, with four Republican lawmakers voting no and two counted absent. At the Senate floor vote, the bill passed unanimously with its additional amendments.