Demystifying Legal Compliance and Pregnancy, Leave and Nursing

The fire service has issued a call to action among its departments, leaders and associations. It connects our collective oath and emphasizes a need for greater diversity and inclusion. The path forward outlines clear strategies, including those that are shared by the Center for Public Safety Excellence in one of its publications, “21st Century Fire and Emergency Services” and by the International Association of Fire Chiefs (IAFC) in “Guide for Creating a Diverse and Inclusive Department,” as well as greater opportunities for legal professionals to support advocacy and compliance. Overall, there is more work to be accomplished, and there are more opportunities to spotlight the law and to be there for firefighters.

Pregnant and nursing protections
Arguably, the fire service is the least diverse profession. Although we see a growing number of women in leadership compared with one and two decades ago, women still are few in numbers. The culture of the fire service is a noted factor in discussions on the recruitment and retention of women firefighters. A notable lack of diversity and a historical prevalence of discrimination only compound concerns and stifle opportunities for another underrepresented group: members who are pregnant, need maternity or paternity leave, or are nursing.

U.S. federal laws that address workplace protections and accommodations for pregnant and nursing employees and their spouse include:

• Family and Medical Leave Act (FMLA)
• Americans with Disabilities Act (ADA)
• Pregnancy Discrimination Act (PDA)
• Pregnant Workers Fairness Act (PWFA)
• PUMP for Nursing Mothers Act (PUMP Act)

The federal laws address workplace protections and accommodations, employment discrimination, harassment and retaliation. Although they ensure minimum protections, it’s prudent to also know state and local laws. The U.S. Equal Employment Opportunity Commission (EEOC) provides guidance on navigating these requirements to both employees and employers, and legal counsel can issue advice.

FMLA
The FMLA provides for as many as 12 weeks of unpaid, job-protected leave annually for qualifying family and medical reasons. This law covers employees who have worked for at least 12 months. It also is enforced by U.S. Department of Labor’s Wage and Hour Division, which provides employees with a process to file a complaint.

Other aspects of the FMLA that members might benefit from knowing:
Spouses who work for the same employer share a total of 12 workweeks of the FMLA leave per year for the birth of a child; placement of a child with the employee for adoption or foster care; and care for a parent who has a serious health condition. This doesn’t apply if a person is unmarried.

ADA
The ADA prohibits discrimination against any applicant or employee that’s based on disability; accordingly, disability may be for pregnancy-related conditions (e.g., gestational diabetes) and not pregnancy itself. It’s enforced by the EEOC and provides employees and applicants with a process to file a complaint.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity; who has a record of such an impairment; or who is regarded as having a disability.

Title I covers employer requirements. Employers that have at least 15 employees must provide equal access to employment and opportunities. This covers areas of recruitment, hiring, promotions, training, pay and social activities. Examples of disabilities include cancer, diabetes and PTSD. “Essential job functions” with/without reasonable accommodation may be discussed. An “undue hardship” can prevent an employer from providing a reasonable accommodation.

PDA
The PDA prohibits discrimination that’s based on current or past pregnancy, potential pregnancy, related medical conditions, such as lactation (or nursing), abortion and birth control choices. This law covers employees and applicants. It’s enforced by the EEOC and provides employees and applicants with a right to sue for monetary remedies.

The PDA requires covered employers to treat employees who are affected by pregnancy, childbirth or related medical conditions the same as others similar in their ability or inability to work.

PWFA
The PWFA requires employers to provide reasonable accommodation for limitations that are related to pregnancy, childbirth and related medical conditions. This law covers both employees and applicants. It is enforced by EEOC and provides employees and applicants the right to sue for monetary remedies. The PWFA defines limitations as a “known limitation related to, affected by or arising out of pregnancy, childbirth or related medical conditions” and only applies to reasonable accommodation. Compared with the ADA, performance of essential job duties is less factored. A qualified employee must have an inability that’s “temporary,” must be able to perform in the “near future” and possesses abilities that can be accommodated reasonably.

The PWFA doesn’t require an employer to have employee medical information that’s obtained from a healthcare provider on the employee’s limitation.

PUMP Act
The PUMP Act provides for a “reasonable break time and space” for an employee to pump at work for as long as one year after a child’s birth. “Reasonable break time” generally is considered an adequate amount for an employee to express milk, and “space” must meet the requirements of a clean, private place that isn’t a bathroom.

Mission-driven change
“21st Century Fire and Emergency Services” embraces greater diversity and inclusion. Benefits include greater community trust and improvements in recruitment and retention.

A firefighter’s work is primarily physical in nature, with high exertion and exposure. Pregnancy and nursing can affect a member’s work needs. First-level supervisors are likely to receive accommodation requests, although there are no specific words to request an accommodation.

The following documents and strategies provide a way forward to best support agency compliance: pregnancy policy; lactation and nursing member policy; reasonable accommodation policy; training for leadership team; training and workshops for managers and supervisors; training and workshops for all members; infographics and tip sheets; expansion of internal member surveys to include pregnancy and nursing topics; nursing space or plan for existing facilities and stations; nursing space or plan for planned facilities and stations.

With more attention on these topics, departments can benefit from collaboration with human resources and legal and partner agencies to review local, state and federal laws for planning.

Meaning to firefighters
With increased education, employees can feel more confident about family planning, navigating a current pregnancy or breastfeeding decision, and career planning. In addition, a nontraditional schedule and duties allow members to envision their next steps.

Firefighters face specific occupational exposures, such as physical hazards and toxic substances. Growing research exists and one study shows that firefighters are at more than twice the risk in some instances than nonfirefighters to experience a miscarriage or preterm delivery.

Meaning to departments
Although the IAFC provides model and sample policies on pregnancy and maternity and paternity leave, more guidance and action is needed on these topics. Although pregnancy discrimination charges in  general decreased from fiscal year 2010 to fiscal year 2022, according to the EEOC, employers were found liable for more than $12 million for pregnancy discrimination.

There also is a direct benefit to employers beyond legal compliance and operational efficiency. In addition to the research that supports family planning and career planning for firefighters, research supports greater “worker well-being” through noted strategies, to include breastfeeding accommodations in the workplace.