MARCH 2023
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
QUESTION:
What steps can be taken if an employee's body odor is impacting the workplace environment?
Dealing with body odor in the workplace can be a delicate issue, as it can potentially involve discrimination or violation of an employee's rights, and it can be hurtful. It is recommended to have a clear policy in your employee handbook addressing personal hygiene and when issues arise, to address it in private with the employee. This situation can cause discord amongst employees, so it must be addressed by HR or management ASAP to avoid it being addressed by other employees, which can escalate the situation.
Whenever speaking with an employee about personal hygiene, it is important to be kind and honest, but also direct. Don’t hint or beat around the bush, instead, start the conversation by telling the employee you plan to discuss a difficult topic.
Be sure not to use judgmental terminology, instead, be respectful and clearly state the issue, refer to the policy covering hygiene, and if needed, state how the employee’s body odor or hygiene issue is impacting the business and/or coworkers.
It is important to allow the employee to have an opportunity to speak and if they bring up a medical condition that may be causing body odor, the HR representative or manager should reassess the situation and explore options for reasonable accommodation. It is essential to ensure the company complies with all laws related to disability discrimination, which is why HR should be consulted prior to the conversation if the manager is the one who will speak with the employee. The goal should be to find a solution that is respectful to the employee and does not create an uncomfortable work environment for others.
As always, the conversation should be documented and expectations should be clearly communicated. If there are consequences for failure to improve hygiene (outside of a medical issue) those should be outlined as well. If an accommodation was implemented, the interactive process should be documented, along with the options for accommodation(s). Regular check-ins should occur following any accommodation implementation to ensure the accommodation is successful.
Need-to-Know:
Pregnant Workers’ Fairness Act (PWFA)
- PUMP Act
By: Debra Fowler, SHRM-CP
Director, Compliance & Policy
At the end of 2022, President Biden signed two bills into law to expand protections for pregnant and nursing mothers: The Pregnant Workers’ Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act.
The PWFA was signed on December 29, 2022, and takes effect June 27, 2023. The PWFA provides workplace protections to pregnant, postpartum, and lactating workers of employers with 15 or more employees and to all government employers. The PWFA does not replace or supersede federal, state, or local laws which may offer more protections.
PWFA Protections provided:
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Requires covered employers to provide accommodation to applicants and employees who are experiencing conditions related to pregnancy or childbirth;
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Prohibits discrimination against applicants and employees because of their need for pregnancy-related accommodation;
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Fills in the gaps left by the Pregnancy Discrimination Act (PDA), which protects employees from discrimination based on pregnancy or related conditions, but does not require accommodations for employees and applicants who are pregnant; and,
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Provides the same types of protections as the Americans with Disabilities Act (ADA) by requiring reasonable accommodation for employees as long as it does not cause an undue hardship for the business, but on a limited basis – the duration of pregnancy and/or condition relating to childbirth. PWFA also includes an interactive process requirement, just like the ADA.
What does this mean for employers?
Covered employers are prohibited from:
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Failing to make reasonable accommodation(s) for pregnant, postpartum, or nursing mothers unless the employer can prove accommodation would pose an undue hardship;
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Denying pregnant, postpartum, and/or nursing mothers their rights to the interactive process under the ADA and the PWFA;
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Denying employment for or taking adverse employment action against a qualified applicant or employee based on their need for accommodation due to pregnancy, childbirth, or related medical conditions;
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Enforcing a leave of absence (whether paid or unpaid) if an alternative reasonable accommodation exists; and,
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Retaliating against employees who have opposed any act or practice made unlawful under the PWFA, or coercing, intimidating, threatening, or interfering with an individual in the exercise of rights granted under the PWFA.
As under the ADA, the PWFA does not require employees to accept unreasonable accommodations proposed by the employer; it also does not require employers to allow accommodations which place an undue hardship on the employer.
A key difference between the accommodation requirements under the ADA and the PWFA is that the PWFA requires employers to consider “waiving” essential job function(s) for a qualified employee if the inability to perform the essential function(s) is temporary. Essentially, an accommodation under the PWFA may be to temporarily relieve the employee of an essential job function and permit the employee to continue working in their role for the duration of their condition, as long as waiving the essential function does not cause an undue hardship for the employer.
The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act expands on the Break Time for Nursing Mothers (2010) requirements under the Fair Labor Standards Act (FLSA). The Break Time for Nursing Mothers Act was a provision under the Affordable Care Act (ACA) which amended the FLSA and required employers to provide reasonable break time and a place for nursing mothers to express breast milk for up to one (1) year after their child’s birth. This was an important law that helped many women stay in the workforce while nursing; however, nearly one in four women of childbearing age were not protected under the act, those classified as exempt employees.
The PUMP Act amends the 2010 legislation to expand this coverage to exempt employees, which is an estimated nine million women. The PUMP Act continues to require employers to increase workplace protections for mothers who express breast milk and provide those employees with reasonable break time for expressing milk and/or nursing. The PUMP Act law is effective for covered employers immediately, with additional provisions effective April 28, 2023.
The PUMP Act applies to all FLSA covered employers; however, just as under the Break Time for Nursing Mothers law those with fewer than 50 employees, may not be required to comply with the PUMP Act if offering the benefit would cause an undue hardship on the employer’s business. Keep in mind, the burden of proof for undue hardship is on the employer and is unlikely to be proven for providing accommodation to qualified employees.
Nursing mothers are eligible for this benefit under the PUMP Act for up to one (1) year after childbirth, and for up to two (2) years, for employees in Colorado. State laws which provide more benefits to employees or have more strict rules than federal law should be reviewed to ensure employer policies meet the requirements of both state and federal laws.
The PUMP Act and PWFA work in conjunction with the Pregnancy Discrimination Act (PDA) under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of “pregnancy, childbirth, and related medical conditions,” and requires employers to treat employees affected by “pregnancy, childbirth, and related medical conditions” the same as other employees who are similar in their inability to perform work. The Equal Employment Opportunity Commission (EEOC), which is responsible for Title VII enforcement, provides interpretation of the PDA to require employers to give employees with lactation-related needs with the same ability to address their needs in the same way it gives non-lactating employees under other circumstances.
In other words, the PUMP Act, PWFA, and PDA all work together to ensure employees experiencing pregnancy-related conditions are given the same rights and protections as other employees experiencing similar conditions, such as reasonable accommodation and break time, as well as being free from retaliation and discrimination.
What does the PUMP Act do?
As of the December 2022 law, employers must provide all nursing mothers with:
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Reasonable break for an employee to express breast milk each time the employee has a need to express breast milk; and,
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A private location (not a restroom) that is shielded from view and free from intrusion where an employee can pump and store breast milk during the workday.
This means that nursing mothers must be given the opportunity to take a break each time they need to express breast milk, not just when it would be convenient for the employer. More information on this topic is expected from the Department of Labor (DOL) within 60 days of the Act’s passage, which should be at the end of February 2023.
The PUMP Act also:
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Extends to include all employees – exempt and non-exempt, which covers workers classified as temporary, part-time, full-time, etc. Some states already provided these protections for nursing mothers, but other states allowed employers to make the policy only effective for non-exempt workers. This is no longer the case under federal law.
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Requires employers to pay employees for pumping time if the employee is not completely relieved of job responsibilities during the break. If a non-exempt employee is completely relieved of all duties and responsibilities during a pumping break, the employer is not required to pay for those breaks. Remember, if state or local law differ and requires that these breaks be paid, the more generous benefit to the employee is what is followed. Additionally, exempt employees’ salaries cannot be reduced for this break time and exempt employees should be paid for their full weekly salary as required by local, state, and federal laws.
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Allows employees to notify their employer if they believe the employer is non-compliant. Employers notified by an employee of alleged non-compliance have ten (10) days from the date of notification to take steps to remedy the situation. If the employer does not correct the non-compliance, the employee can then file suit against the employer to seek monetary remedies after the 10-day period.
PUMP Act Penalties
From December 29, 2022 through April 27, 2023, employer violations of the FLSA and PUMP Act, respectively, are limited to unpaid minimum and/or overtime wages.
As of April 28, 2023, employers found to be non-compliant with the PUMP Act, including those found to have retaliated against employees for exercising their rights under the Act, will be liable for legal or equitable remedies under the FLSA.
The FLSA provides examples of remedies: employment, reinstatement, promotion, payment of wages lost and an equal amount as liquidated damages, compensatory damages, and make-whole relief which could include economic losses resulting from violations and punitive damages where appropriate.
Employer Next Steps
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Engage Vida HR to review your employee handbook for compliance and help navigate through accommodation situations.
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Update your Employee Handbook to ensure a compliant policy indicating employee rights for accommodation under the PWFA and break time rights under the PUMP Act.
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Review and update timekeeping and rest period policies and practices to align with the new laws.
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Train supervisors and educate employees on the new laws.
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Be on the lookout for updated information from the DOL in late February, early March 2023.
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Stay on top of local and state laws, which may provide increased or more strict requirements for pregnant and nursing mothers and ensure compliance with all local, state, and federal laws.
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SURVEY SAYS!
In last month’s newsletter we asked readers 3 questions:
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Do you think a 4-day work week (4 x 8-hour days) is possible at your current job?
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What Day of the Week Do You Prefer to Take Time Off?
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Which Would You Prefer?
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An Additional Paid Holiday per Year (Chosen by Your Employer)
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A Single Floating Holiday (Chosen by You on January 1)
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A Full Day of Compensation Added to Any Single Paycheck
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And now (drumroll…) here are the results!
Question 1:
Do you think a 4-day work week (4 x 8 hour days) is possible at your current job?
Question 2:
What Day of the Week Do You Prefer to Take Time Off?
Note: No survey participants chose Tuesday, Wednesday. or Thursday.
Question 3:
Which Would You Prefer?
EMPLOYEE HIGHLIGHT
EMPLOYEE HIGHLIGHT
EMPLOYEE HIGHLIGHT
Hello, I'm Lindsay!
I have worked for Vida HR for 10 months as a Regional Manager of Human Resources. Although my time with Vida HR has been relatively short, I started my career in Human Resources over 15 years ago. During that time, I have obtained my Professional in Human Resources Certification as well as a Master’s Degree in Human Resource Management. My passion for helping people is what influenced me down this path and the reason I continue to do what I do. My PI profile is Operator, which means I tend to teach and share; often working collaboratively with others to help in any capacity. I also really enjoy processes and understanding other’s point of view. I think these strengths have helped me in my current role to understand the needs and wants of clients while also being able to teach them about the importance of HR.
A little about me:
This summer I will celebrate my 5-year wedding anniversary to my wonderful husband, Coy. Together we have a 3-year-old son named Liam with another little one currently on the way. We also have a 2-year-old Goldendoodle named Arlo. Needless to say, between the kiddos and the dog, they keep us very busy. Thankfully, we do manage to get some fun in. In our free time, we love to travel, camp, boat, and just overall enjoy everything this life has to offer.