The Biden administration issued a 275-page overview this week of the obligations restaurateurs and other employers are required to meet under a new law called the Pregnant Workers Fairness Act, or PWFA.
The Occupational Safety & Health Administration technically started accepting complaints of violations on June 27, but the workplace safety agency has yet to set the specific do’s and don’ts for employers. A formal draft of those regulations will be published Friday, with the public having 60 days afterward to suggest adjustments. The report issued Monday is intended to be a preview for stakeholders and the general public.
OSHA has until Dec. 29, the 1-year anniversary of the PWFA’s enactment, to finalize the rules. But the workplace watchdog studded its first draft with specific examples of how employers might veer from the overriding intent of the law: To accommodate the particular needs of employees who are pregnant or have recently given birth, unless those adjustments pose an undue hardship on an employer.
Here are several of the hypothetical situations that were posed, along with assessments of whether the imagined employer was right or wrong.
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Situation #1: A pregnant restaurant server asks her boss if it’s okay to take more breaks than usual because she’s tired and her feet are painfully swollen. Could she mix in a few more moments of rest?
The restaurant surprises the woman by going further. It shifts her to a hostess role, which affords her more time to sit and rest.
Did the establishment meet its obligations?
Answer: Definitely no, says OSHA. Although the restaurant was well-intentioned, it failed to meet the PWFA’s stipulation that accommodations be determined through collaboration between employer and employee. The business erred by not bringing the server into the discussion before shifting her role.
Situation #2: A pregnant staff member asks to work overtime, but requests she be allowed to take more bathroom breaks during the extra hours than would likely be okayed for co-workers. Expecting claims of favoritism from the staff, her boss figures the best thing for all parties would be to deny the request for overtime.
Was it a good call?
Answer: Not at all, according to OSHA. Figuring out a way to cover for the pregnant woman when she needs a bathroom does not constitute undue hardship, according to the agency, so that course should not have been rejected by the restaurant. Plus, the server was slighted for being pregnant because she was denied a chance to boost her earnings, a direct contradiction of the law’s intent.
Situation #3: An employee returns to work after suffering complications during and after her pregnancy. She’s told by her doctor to avoid lifting anything heavier than 20 lbs., as she’s sometimes required to do after her restaurant receives a delivery of supplies. She also has a longstanding problem with her knees that’s aggravated by lifting heavy objects. She asks her employer if she could be shifted to another position where no lifting is required.
Is she entitled to the reassignment under the PWFA?
Answer: Clearly not, says OSHA. The law requires that reasonable accommodations be made for conditions resulting from a pregnancy. The new mom’s knee problems existed long before she gave birth, so that issue doesn’t factor into the situation. What’s more, the obvious reasonable accommodation would have been sparing the woman from having to lift anything over 20 lbs., if that exception didn’t prove an undue hardship. The restaurant would have been in compliance if it merely exempted the team member from hefting boxes weighing more than 20 lbs.
Situation #4: An employee is dragging on the job because her pregnancy sometimes leaves her unable to sleep. Hearing complaints from her boss, she asks the restaurant to pop for a special pregnancy pillow and a white-noise machine, two easy ways to increase her slumber and raise her performance level.
Because the sleep aids are relatively inexpensive, do they account for reasonable accommodations the employer is obliged to make?
Answer: Nope. According to OSHA, the woman’s sleep problems are an issue in her personal life, not a workplace matter. A truly reasonable accommodation would be to allow the employee to start her shift later than usual after a fitful night, provided the concession doesn’t pose an undue hardship for the establishment.
The preview and analysis of the new workplace rules can be found here. After the proposed regulations are published in the Federal Register, restaurant employers and employees can provide feedback to OSHA here.
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