If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women's Law Center (NWLC) and other women's legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.
Let's start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.
In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA's definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act - which means that they'll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.
To ensure that employers' legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women's rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) - draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers' rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.
Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.
Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified "accommodating pregnancy-related limitations under the ADAAA and the PDA" as a priority area for its enforcement efforts through 2016.
Here's the point: We often value things more simply because we pay more for them. If this holds true for wine and cars and dates, then why wouldn't it be true for employees? Employers have tried to finagle with compensation systems from Day 1. What's the right mix of compensation to help generate the greatest return on investment of an employee or workforce? Because it's a mistake to underpay or overpay employees, how do we decide just how much to? Here's an easy three-part solution:
1. Identify the market rate. What does the “average” employer pay for a certain level of employee? You can learn this by going to the statistics at BLS.gov, your state labor agencies, sites such as Salary.com, or your local employers' group. You might also have industry-related associations and can hire some competitive intelligence to provide these rates. In my experience and opinion. to pay anything more than 25% above grade is essentially throwing away money. For example, in the fast food industry if $8.50 is the norm, it might make sense to pay $10.50, as In-N-Out Hamburger does in California, or the premium Costco pays its employees. However, it doesn't make sense to pay even 1% above grade if it's not going to buy you a more productive employee. Perhaps there are other ways to attract productive employees. You might be able to attract them by being the most outrageous or flexible or cutting-edge workforce.
2. Think team bonuses. When I perform employee surveys at companies, I always ask whether employees prefer incentives based on individual performance, on that of a team, or of the entire company. Over the years, I've found that where there's a great deal of trust, people prefer team-based incentives. If trust is low, they prefer individual incentives. Of course, we trust those people to whom we're closet. As an owner, if I wanted to help generate trust, I would offer team-based incentives. As the saying goes, “A rising tide floats all boats.” I would recommend a bonus (say 10% of net profits) and then distribute it based on employee's gross compensation. For example, if one employee makes $50,000 per year and one employee makes $25,000, the person making $50,000 gets twice the bonus. This is a simple formula that avoids a lot of wasted time and energy trying to finagle 2% here, 4% there, etc. If an employee displays outstanding performance, the chances are that they're in line for a raise or promotion. This is how you manage going forward.
3. Award people immediately on an individual basis when they go the extra mile. According to Barber's 1001 Proverbs, “The greatest benefit is the one last remembered.” Don't underestimate the power of: (a) rewarding what you want to reinforce, and (b) doing it immediately. These rewards need not be expensive; they're as much about acknowledgment as they are about money. Of course, a little bit of cash helps too.
I just finished listening to an interesting podcast by the Freakonomics authors about the risks that gun use presents. For example, they indicated that the odds of a gun causing a person's death are about 1 in 10,000, while the chances of a backyard swimming pool causing a death are some 100 times greater. Does this mean that we should focus on swimming pool control and forget about gun violence? Although I doubt that anyone would suggest this, it does give food for thought.
For the past dozen years, I've been in a catbird seat observing the incident of employment practices liability exposures and lawsuits. My conclusion: Employee Liability Practices Insurance cannot cover the major personnel practice exposures facing businesses. For example, there's no risk mitigation for making poor hires, fostering low productivity, triggering high turnover, or failing to have workers play like a team. The frequency of such exposures, and their expense, far exceed those associated with employee lawsuits.
Let me share another statistic. In 2012 the U.S. had one of the worst years ever for mass shootings, with approximately 700 fatalities (four times the annual average toll). As you might expect, these sensational and painful cases grabbed plenty of headlines. However, in the same year, roughly 20,000 Americans committed suicide using guns, killing some 11,000 other people in the process - and garnering little, if any, media attention.
The same thing holds true for workplace risk exposures. How many articles are you going to read about the impact of bad hires or productivity left on the table every day? Where's the drama in that? However, a, juicy lawsuit in which a sexual harassment claimant gets a multi-million dollar verdict will get plenty of press.
Likewise, more than half of the discussions at any HR conference will involve compliance exposures. Meanwhile, the greatest risk to your company's survival has little or nothing to do with compliance litigation. In my 30 years as an attorney, I've seen only a handful of small businesses go under because of employee lawsuits - and hundreds of companies of all sizes go out of business because of poor management practices.
As with the gun/swimming pool example, we need to understand the relative probabilities of the various risks employers face.
None of us need the horror of mass shootings or nasty employee lawsuits. These events make for good press (as they say, "if it bleeds, it leads.") When we run 75 mph as a society, it's hard for us to connect without doing so through a mass pity party. The media taps into this social reality on a daily basis with sensational headlines and lead stories, making it all too easy to divert business owners and managers from focusing on significant employment risk management issues.
Food for thought...