Fly High (and Out of the EEOC’s Eye) by Updating Your Policies on Pregnancy Accommodation and Lactation

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Everyone has been preparing for the recently enacted Pregnant Workers Fairness Act and the PUMP Act. Earlier this month the EEOC gave us another reason to make sure our policies are up to snuff. Frontier Airlines and the EEOC reached a settlement on claims filed in 2018 and 2019, which alleged that Frontier discriminates against pregnant and lactating employees. As part of the settlement, the airline agreed to several policy changes. Given that this issue is clearly on lawmakers’ and the EEOC’s radar, employers should take note of these policy changes.

Lessons from the Settlement

Some of the policy changes (like allowing pilots to pump breastmilk in the cockpit during noncritical phases of the flight), are pretty industry specific. However, others give us some insight as to what the EEOC will likely want from employer policies. For example, Frontier’s new policies will:

  • Permit pregnant pilots to fly with a medical certification (which complied with the union contract). Even if you don’t employ pilots, think about any policies you have that preclude all pregnant workers at some point in the pregnancy. Rather than a general cutoff date (like six months), think about accepting a medical certification for the employee to work beyond the cutoff.
  • Clarify a policy to be sure that the airline accommodates pilots unable to fly due to pregnancy or lactation on the same terms that it accommodates pilots unable to fly because of other medical conditions. In the airline industry, this can include temporary ground assignments or medical leave. If you make temporary assignments available based on non-pregnancy-related medical conditions, be sure you include medical conditions related to pregnancy.
  • Maintain and distribute internally a list of airport lactation facilities. While this may not be a necessity for all of your workforce, think about how you are communicating with your employees. If an employee filed a charge alleging that you did not provide an appropriate place to pump, it would be great to point to a policy that provides the process for addressing these issues. If it makes sense for your facility, it would be great evidence if you provided information to your worker of the available lactation room(s).  

An Ounce of Prevention Is Worth a Pound of Cure

Given the new laws, having policies that support employees during pregnancy and following will be important to defending claims.  

  • Have a policy (or policies) that clearly sets out what is available to employees who are pregnant or lactating. You may cover reasonable accommodations, leave, and breaks in several different policies — just make sure they clearly address pregnancy and lactation issues.
  • Think about having a handout you can give to employees when they disclose their pregnancy, ask for maternity leave, or return from maternity leave. The handout could direct them to the policies in the handbook or the person in HR who can help them with questions.
  • Make sure that your front-line supervisors know they have a legal duty to accommodate these issues and who they and their employees can talk to with questions.

One size will not fit all so we need to be willing to talk with employees to figure out what they need. This could be a great help, not only to your employees, but in avoiding or defending legal challenges.