Columns

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession. Foonberg was a real character. He said a lot that day. One of the things I remember is that he referred to his law degree as a “magic carpet.” He carried the example even further saying that when he kneeled on it, it took him to places he could never imagine. I thought it was a funny line, maybe a bit wacky.

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession. Foonberg was a real character. He said a lot that day. One of the things I remember is that he referred to his law degree as a “magic carpet.” He carried the example even further saying that when he kneeled on it, it took him to places he could never imagine. I thought it was a funny line, maybe a bit wacky. As time has marched on, I am beginning to realize just how right Foonberg was. His magic carpet analogy just keeps coming back to me as I look back at some of our clients’ cases that shaped the law and served to help others in a tangible way.
Mayfield v. ASC Incorporated Health & Welfare Benefits Plan (E.D. Mich. 2007) was one such case. The case would have otherwise been a routine healthcare denial but for the person who brought it. Christopher J. Mayfield was a dynamic salesperson with an infectious enthusiasm for life. He brimmed with optimism and punctuated every observation with a huge smile and hearty laugh. As lawyers, we know there are some clients whose call we would take anywhere, anytime. Chris was one of those clients.

He and his wife, Liz, an impressive person in her own work life, had a son who was struggling during the early stages of his development. The child’s actions suggested that he was having difficulty communicating and making sustained eye contact.

The couple sought out help from the child’s medical providers. They were informed along the away that their son, in all likelihood, had autism spectrum disorder. The condition was on the rise, and statistically the number of cases among toddlers was growing rapidly– 1 out of 150, 1 out of 100, 1 out of 60.

Still, there was no known cause and no known cure.

The couple began researching treatment options and seeking out the advice of medical providers. What they found was that young children receiving a decades-old therapy known as Applied Behavioral Analysis — or ABA — showed progress in establishing improved communication abilities and independent living skills. For those children on the spectrum who were higher functioning, ABA held the promise to help those children’s functional abilities become almost indistinguishable from children without autism.

As promising as ABA therapy was, there was a dearth of treatment centers. And because the signs of autism tended to surface around 18 months, which coincided with the age for administering the Measles, Mumps, and Rubella (MMR) vaccine, the internet was awash in misinformation. This was a perfect setting for health insurers to exploit. Medical plans reflexively denied all claims for ABA therapy by labeling it “experimental” or “investigative.” That meant that ABA treatment, which was costly, could be denied under the general exclusions section that appear in all health insurance contracts.

The problem with this reason for the denial for the Mayfields was that they saw real gains in their son’s abilities. Their son’s ABA therapy, which sometimes involved 40 hours per week of intensive work, was showing real functional improvements. And the setting where the therapy took place was safe – it was kid-friendly but also had sufficient clinical controls and was overseen by top-notch physicians on staff with a major medical center.

The Mayfields also noticed what later became known as the “parking lot problem.”  The cars in the ABA treatment center parking lots tended to be expensive cars suggesting that care was available for those with means, not those without. At the time, the cost for ABA therapy was as much as a year of college tuition with room and board — and there was no 529 plan to tap. In other words, without insurance coverage, parents were paying college-tuition size bills for therapy being provided to two-year-olds.

The Mayfields resolved to fight the denials and fight them hard. They asked me to go and observe the ABA treatment of their son. They set up interviews with ABA experts.

They made arrangements for me to receive a crash course on the therapy’s efficacy by doctors who provided me with studies and literature that would allow us to challenge the underlying basis for the denial. So, we went to heart of the denial — was ABA therapy really still in its experimental stages as the insurers alleged? There was so much research showing it was an established mainstream treatment that the old studies were embarrassingly shallow.

The Mayfield’s case was 100 percent evidence based. They kept it data-driven by design.

After all the internal administrative appeals, litigation, and ultimately a federal court hearing, Judge Anna Diggs Taylor’s order in their case was elegantly simple. She overruled the insurance company, threw out the exclusion as applied to ABA therapy, and ordered the treatment covered. She ruled the therapy was proven, mainstream, and effective. It was a brief, terse ruling. But this brief order was like throwing a stone in water, as it would have real implications for the rights of children with autism and their parents in the coming years.

The Mayfield case led to many cases seeking ABA therapy on both an individual and class-wide basis (which will be discussed in a future column). But the universal takeaway is that a
lawyer should listen and learn from their clients. No one knows a case better than the client, even a case involving purely medical evidence, and there is an extremely valuable knowledge base there.

The idea of listening, learning, and incorporating those ideas into a case makes for a winning strategy and rewarding lifelong relationship.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

I read the paragraph several times. I wanted to make sure I understood all of its implications. When I did, just one word came to mind: Insanity.
Insanity, pure insanity.
How else can one describe Russian President Putin’s threat to launch nuclear weapons and destroy the Earth?
In his annual state of the nation speech (February 29), Putin was very clear about the threat. He bragged about his country’s nuclear arsenal and that he was prepared to use it even if he had to sacrifice Russia and the rest of the world.

I read the paragraph several times. I wanted to make sure I understood all of its implications. When I did, just one word came to mind: Insanity.

Insanity, pure insanity.

How else can one describe Russian President Putin’s threat to launch nuclear weapons and destroy the Earth?

In his annual state of the nation speech (February 29), Putin was very clear about the threat. He bragged about his country’s nuclear arsenal and that he was prepared to use it even if he had to sacrifice Russia and the rest of the world.

Insanity.

While acknowledging that a nuclear attack would bring retaliation, Putin nevertheless threatened such an attack which, in effect, would be a death sentence for Russians and have worldwide consequences.
For what? A nuclear Armageddon does not achieve his objective of taking Ukraine.

Insanity.

This is stuff for psychiatrists not political pundits or analysts. This is impossible to deal with rationally.

Mr. Putin said NATO countries that were helping Ukraine strike Russian territory “must, in the end, understand” that “all this truly threatens a conflict with the use of nuclear weapons, and therefore the destruction of civilization.

“... [W]e also have weapons capable of striking targets on their territory. Everything they are inventing now, spooking the world with a threat of a conflict involving nuclear weapons, which potentially means the end of civilization -- don’t they realize this?

“Strategic nuclear forces are on full combat alert and the ability to use them is assured,” he said.

Insanity.

He has suspended participation in NewSTART, Russia’s last major arms limitation treaty with Washington and has moved tactical nuclear weapons to ally, Belarus.

NewSTART, which limits the number of warheads that each side can deploy to 1,500, was due to expire in 2026. The U.S. and Russian have 90 percent of the world’s 12,500 nuclear warheads held by nine countries.

Insanity.

Incidentally, Putin’s threat came about two weeks before The New York Times published a series of articles on the threat of nuclear war. Resulting from a year of reporting and research, the series is titled “The Threat of Nuclear Weapons in an Unstable World.”

In the series’ introduction, Kathleen Kingsbury, opinion editor, writes: “The growing threat of nuclear weapons is simply not part of the public conversation. And the world is less secure. Today the nuclear safety net is threadbare.”

W.J. Hennigan, the project’s lead writer, describes what would happen if one -- just one -- nuclear device were detonated. It is hair-raising, not bedtime reading.

He observes: “Even a limited nuclear war could be catastrophic. A 2022 scientific study found that if 100 Hiroshima-sized bombs, less than one percent of the estimated global nuclear arsenal, were detonated in certain cities it would generate more than five million tons of airborne soot… creating the largest worldwide famine in history. An estimated 27 million could immediately die and as many as 225 million may starve within two years.”

Insanity.

He makes public how close the world came to breaking the “decades-long nuclear taboo” in the fall of 2022. The odds of a nuclear strike at the time were 50-50, according to expert analysts and, as far as I know, not one word was published on this threat.

Here is how Hennigan says the threat developed and how the U.S. responded:

The Russians said that Ukraine was planning to use a so-called “dirty bomb” which the U.S. and Ukraine decided was a ploy to give Russia an excuse to use a nuclear weapon. Supplies were flown to Europe; hundreds of radiation detectors were set up; U.S. sent more than 1,000 hand-held radiation monitors; 200 Ukraine hospitals were identified as go-to facilities; thousands of doctors and nurses were trained to respond appropriately; and millions of potassium iodide tablets were stock piled around the country.

“Nuclear war is often described as unimaginable. In fact, it’s not imagined enough,” Hennigan said.

Insanity.

For a week, the White House and the highest-ranking officials worked around the clock and planned for the worst.

A nuclear doomsday was averted, but as Putin makes clear and The Times articles corroborate, the world is sitting on a nuclear power keg, and the dangers of it exploding are not far-fetched. We cannot rely or take solace in the fact that we were on the right side of the 50-50 odds in 2022.

“The possibility of a nuclear strike, once inconceivable in modern conflict, is more likely now than at any other time since the Cold War,” says Hennigan. He continues:

“... [M]ost of the world has barely registered the [nuclear] threat. Perhaps it’s because an entire generation came of age in a post-Cold War world, when the possibility of nuclear war was thought to be firmly behind us. It is time to remind ourselves of the consequences in order to avoid them.”

We cannot and must not let this insanity fester without treatment.
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Berl Falbaum is a long time political journalist and author.

Before we get to the endorsement by Russian President Putin of Joe Biden for the presidency, a background story.
A few years ago, a good friend of mine, Joe Smith (not his real name), was running for Congress (he won) and was seeking endorsements from officeholders.
He was approached by a member of the Michigan State Legislature, Jim Johnson (not his real name), who had a reputation for corruption, lying and womanizing (Yeah, just like Trump).
“Joe,” said Johnson, “I really like you. Really, I do and I want you to win. But given my reputation which, incidentally, is totally undeserved, I don’t know what to do. Should I endorse or oppose you? Which will help you more?”

Before we get to the endorsement by Russian President Putin of Joe Biden for the presidency, a background story.

A few years ago, a good friend of mine, Joe Smith (not his real name), was running for Congress (he won) and was seeking endorsements from officeholders.

He was approached by a member of the Michigan State Legislature, Jim Johnson (not his real name), who had a reputation for corruption, lying and womanizing (Yeah, just like Trump).

“Joe,” said Johnson, “I really like you. Really, I do and I want you to win. But given my reputation which, incidentally, is totally undeserved, I don’t know what to do. Should I endorse or oppose you? Which will help you more?”

My friend was in a quandary. He did not want to tell the man to forget about the endorsement because it would imply that he shared the view of others that the man was a scumbag, and an endorsement or opposition would damage his campaign. He managed to escape by lying that he did not have time to discuss the implications of the “kind offer.”

When Putin recently threw his support behind Biden, I wondered if the Russian leader had heard of my story.

In case you missed it, Putin was asked recently who he favors in the upcoming election. The Russian president did not hesitate.

Yes, he said, he would work with any U.S. president whom the American people elect. But he added he liked Biden better because the sitting president is “more experienced, predictable, an old-school politician.”
Asked about Biden’s age and mental acuity, Putin said he has not noticed any issues, or any decline in Biden’s memory or mental awareness.

Referring to a meeting he had with Biden three years earlier in Switzerland, Putin said, “Even then people were saying that he was incompetent, but I did not see anything of the sort. Yes, he kept looking at his papers, but to be honest, I kept doing the same. There was nothing peculiar.”

Putin certainly remembers that Biden called him a “killer,” “murderous dictator” and “pure thug.” Perhaps Putin has decided to let bygones be bygones.

So, was Putin serious or did he have a Machiavellian strategy in mind? Did Putin believe that the endorsement from a brutal, murderous dictator would hurt Biden and throw votes to Trump? Or does he really believe that Biden is suffering from a decline in cognizance and believes the president would be easier to deceive than Trump?

On its face, one would think that Putin would embrace Trump who has shown his admiration for the Russian leader for seven years, all but kissing him on both cheeks. He may even have sent him a Valentine’s Day card.

In responding to the endorsement, Trump seemed to forget his unseemly fawning over Putin, stating Putin has given him “a great compliment, actually. Of course, he would say that he wants to have Biden because he is going to be given everything.”

Now the question becomes whether Trump was strategically suggesting that he would be tougher on Putin than Biden, believing that Putin would understand his response. Trying to give his criticism of Putin some credibility, the former president added, “Putin is not a fan of mine.”

The most difficult question is how will Biden react. He surely must be grateful for having such a world leader commend his abilities and testify to his mental astuteness.

But can he quote Putin to the American public? Can he say, “Did you hear what Putin said about me?”

Other questions: Will he list the endorsement on his campaign literature? Should he thank Putin -- privately or publicly? Does he call him an s.o.b. for the politically underhanded endorsement? If he does so on the record, would Putin sabotage Biden by revealing mistakes the president has made.

If we take this endorsement serious, the question is: how much is a Putin endorsement worth? Is there a pro-Putin faction in the U.S.? If so, how big is it, especially in swing states?

Wow, politics can sure become complicated. It is so dizzying.

The more I thought about this conundrum, the more I speculated that Putin and Trump may have planned this together. Sure, I know cynicism has its limits, but nevertheless, it is sort of fun to consider that. Moreover, several investigations found there was Russian interference in the 2020 election.

The White House, tossing gratitude to the winds, issued a statement asking that Putin “stay out of American elections.”

One thing is clear: Biden cannot say that he doesn’t remember receiving Putin’s endorsement.
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Berl Falbaum is a long time political journalist and author.

Years of writing and grammar classes taught me to never begin a paragraph with the word, “I.”  That lesson has stuck with me not only in writing, but also as a subtle reminder to go about life with an abiding sense of humility.
So, in marking the 25th anniversary of J.J. Conway Law, I have been a little sheepish about how to properly celebrate this milestone.

By JJ?Conway
Conway Law

Years of writing and grammar classes taught me to never begin a paragraph with the word, “I.”  That lesson has stuck with me not only in writing, but also as a subtle reminder to go about life with an abiding sense of humility.

So, in marking the 25th anniversary of J.J. Conway Law, I have been a little sheepish about how to properly celebrate this milestone. Consistent with what those great schoolteachers taught me, we will mark our 25th anniversary this year by celebrating the contributions of a few of our clients who have had a transformative effect on employee benefits law. The clients that are highlighted reflect true altruism in that they always saw their own case in the context of a larger need. Unequivocally, their cases helped others and, in some cases, sparked real change.

Employee benefits is an interesting legal specialty area. Our clients range in age from newborns to 80-year-olds and everyone in between. That is principally because employee benefits play a real role in people’s lives. From healthcare to retirement to insurances covering life’s unexpected events – employee benefits can make the difference in someone surviving financially. So, within this context, here are a few of the cases that have made an impact in the lives of others:

Mayfield v. ASC Corporation.

A father and sales executive began a quest to challenge the routine denials of healthcare benefits for children with autism. Previously, parents were reluctant to have an autism diagnosis appear in a child’s medical file because of the problems they faced with insurance. Mayfield was the first in the nation to secure a federal court ruling that the denial of benefits for his child was “arbitrary and capricious” under ERISA. Mayfield himself used his persuasive salesmanship skills to overcome nearly every obstacle in the case, and he then came back to pull others along with him in the fight for better coverage.

Johns v. Blue Cross Blue Shield of Michigan.

Building on Mayfield, a couple with a young son with Autism Spectrum Disorder (ASD) served as the first lead class action plaintiff and ultimately made the settlement decision allowing hundreds of families to recover their out-of-pocket charges for specialized therapy. The groundbreaking suit led to class action litigation across the United States. Each case built upon the one before it and brought about considerable change in this area. When it was over, nearly every child born in the U.S. with autism who is covered under a private plan of insurance has coverage for specialized and medically necessary care.

Estes v. Anderson.

A union worker and later plant manager with a decades-long career of service to the City of Detroit took on her pension’s trustees and advisors. She brought about real change after years of corruption that contributed to the city’s bankruptcy. Her efforts, which were profiled in the New York Times, sought to reform the way her pension plan’s money was invested – and she succeeded. The plan’s finances were put on a more stable footing for the future and the pensions of more than 15,000 retirees were in a better place as a result.

DeLisle v. Sun Life Assurance Company of Canada.

Sherry DeLisle’s seven-year legal battle led to the Sixth Circuit adopting an “evaluation of factors” approach to resolving ERISA benefits disputes. Prior to DeLisle, courts struggled in deciding how to properly consider the impact of a financial conflict of interest when an insurance company decides whether to pay benefits. Eventually, state insurance laws would remove some of these unfair practices, but until DeLisle, the proper method of evaluating this issue was largely inconsistent throughout the Circuit.

Wallace v. Oakwood Hospital.

A nurse who contracted an infectious disease overseas later challenged an insurer’s requirement that she formally exhaust her pre-suit administrative remedies – even though her contract never included such a requirement. For years, the “exhaustion doctrine” was used regularly to dismiss valid ERISA claims on what amounted to a technicality.

Wallace’s case challenged whether benefit plans could enforce such a requirement when a plan document contained no such requirement. Prior to her case, an exhaustion requirement was presumed to apply. This ruling allowed many claimants another chance to seek benefits where they previously may have been shut out.  

Bryant M.

A family turned their own case into a larger quest for appropriate mental health coverage through a movement that sought to change Michigan’s law on mental health parity.

They established an online clearing house that provides information about benefits to families in need. The efforts of this one family have helped hundreds of families struggling to secure intensive mental healthcare treatments for adolescents and teens who are in crisis, especially following the isolation of the pandemic. The work this family does could easily be a full-time job, but they forge on, undeterred.

When reflecting on these cases you realize they were impactful because they were mission-led. The clients thought beyond themselves. They wanted a win for everyone struggling with the same challenges and injustices. In the end, they succeeded, because although their cases have ended, the positive impact remains to benefit others.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

The warped political spirit of James Brien Comey, Jr. lives on.
He has been reincarnated in the person of Robert Kyoung Hur, the U.S. special counsel appointed by Attorney General Merrick B. Garland to investigate Joe Biden’s handling of classified materials after leaving the vice presidency.
First, some relevant political history.

The warped political spirit of James Brien Comey, Jr. lives on.

He has been reincarnated in the person of Robert Kyoung Hur, the U.S. special counsel appointed by Attorney General Merrick B. Garland to investigate Joe Biden’s handling of classified materials after leaving the vice presidency.

First, some relevant political history.

In 2016, Comey, as FBI director, was investigating the use of private emails by Hillary Clinton when she was secretary of state.  At the time of the investigation, she was the Democratic presidential candidate running against the Republican Donald Trump.  She was the hands-down favorite to win.

 In July, Comey announced that the FBI found no criminality on the part of Clinton, stating that there was no evidence that Clinton intentionally transmitted or willfully mishandled classified information. Thus, charges were not warranted.

But on October 28, 2016, just 11 days before the November 8 election, when Comey dropped a bombshell by writing to Congress that he was reopening the Clinton investigation. Then, just a few days before the vote, he again exonerated Clinton.

However, the damage was done and many, including Clinton, believed Comey cost her the presidency.

Now, fast forward some 7 ½ years and we have Hur, repeating Comey’s political sabotage, in his year-long investigation of Biden.

In his 350-page report last week, Hur concluded that “no criminal charges are warranted in this matter.” Biden’s action did not establish criminality beyond a reasonable doubt, he maintained.

Despite this conclusion, Hur added that the investigation "uncovered evidence that Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”

The materials included "marked classified documents about military and foreign policy in Afghanistan, and notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods."

Hur said FBI agents recovered the materials from "the garages, offices, and basement den in Mr. Biden's Wilmington, Delaware home."

Fair enough. Those are acceptable and important facts about the investigation. If only Hur had left it there.

For whatever reason, Hur abandoned his legal examination and added, inexplicably, hard-heartedly and unnecessarily, that Biden is a “sympathetic, well-meaning, elderly man with a poor memory” and it would have been “difficult to convince a jury that they should convict him…of a serious felony that requires a mental state of willfulness.”

Apparently unable to stop himself, Hur added that Biden’s memory was “significantly limited” and his “memory appeared lazy.” He said Biden demonstrated “diminished faculties and faulty memory.”

If that were not enough, with insensitivity that is hard to comprehend, and seemingly wanting to cause the president pain, Hur wrote gratuitously:

“He did not remember, even within several years, when his son Beau died."

(Beau Biden died at 46 of brain cancer in 2015.)

Even in the no-holds barred nature of national politics, this went beyond the pale.  Hur did not offer legal reasoning for his conclusion not to charge Biden. Instead, he based his decision on a political rationale, and an ugly one at that.

New York Times Columnist Paul Krugman, obviously angry, wrote that to imply Biden suffers some mental deterioration because he could not remember the year his son died in the midst of a world crisis (Gaza) is “disgusting.” One letter writer to The Times called it a “political hit job.”

Biden, enraged and emotional, responded at a hastily called press conference just hours after the report’s release to the public.

In remarks that surely touched any parent and anyone with a sense of humanity and decency, the president, close to tears, said:

"How in the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it was none of their damn business.

“Every Memorial Day we hold a service remembering him, attended by friends and family and the people who loved him. I don't need anyone to remind me when he passed away.”

The president pointed out that he still wears a rosary on his wrist which belonged to his late son. He appeared to choke up.

The GOP, of course, wasted no time exploiting Hur’s report, endlessly quoting Hur on Biden’s alleged diminished mental acuity. And, we can expect the report to be cited in political advertising when the expected Biden-Trump rematch takes off later this year. Trump and his loyalists are not exactly known for compassion.

Perhaps Hur was never able to purge himself of Trumpism politics.  After all, he was appointed by Trump to oversee one of the largest U.S. Attorney's offices in the nation as the chief federal law enforcement officer in Maryland from 2018 to 2021.

Regrettably, Biden should have waited to respond until he had his emotions under control.  At the press conference, he gave his critics more ammunition when, discussing the Hamas-Israel war, he mistakenly referred to the president of Egypt, Abdel Fattah el-Sissi, as the president of Mexico.

The good news? The controversy will probably fade -- at least somewhat -- as the campaign heats up although we can be confident that Republicans will do all it can to keep the Hur report before the electorate. Also, while the Comey crisis occurred just 11 days before the election, we still have nine months before this year’s vote.

However, we can be confident of the following: Hur will take his place, next to Comey, in the infested swamps of American presidential campaign history.
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Berl Falbaum is a long time political journalist and author.

Over the past year, federal lawmakers have advanced two significant pieces of legislation that expand workplace protections for pregnant workers and nursing mothers.
The Providing Urgent Maternal Protections ("PUMP") for Nursing Mothers Act offers enhanced provisions for breastfeeding mothers.

Over the past year, federal lawmakers have advanced two significant pieces of legislation that expand workplace protections for pregnant workers and nursing mothers.

The Providing Urgent Maternal Protections ("PUMP") for Nursing Mothers Act offers enhanced provisions for breastfeeding mothers. Meanwhile, the Pregnant Workers Fairness Act (PWFA) requires companies to provide specific accommodations to pregnant employees. Both were signed into law in December 2022.

The regulations aim to broaden protections for women, ensuring that pregnant and nursing mothers do not become targets of workplace discrimination. With new legislation to navigate, employers must familiarize themselves with the nuances of each law and take steps to ensure compliance.

Codified Protections for Nursing Employees

The PUMP Act mandates that all companies — regardless of size — provide employees with time and a private space to express milk at work for up to a year after the birth of a child. The law was enacted on December 29, 2022. Its enforcement provisions, which allow workers to sue employers violating the law, followed shortly after, on April 28, 2023, with a few industry-specific exceptions.

The PUMP Act expands protections granted to nursing mothers under the Fair Labor Standards Act. While the previous Break Time for Nursing Mothers Act only covered non-exempt workers, the PUMP Act extends protections to millions of salaried exempt members of the workforce.

Under the new law, employers must provide reasonable break time to express milk, and allocate a private place, shielded from view, where employees can express milk. It cannot be a bathroom, but there is substantial flexibility beyond this. The space must be functional for pumping, and can be as simple as a reserved conference room available as needed or a dedicated cubicle shielded from view with a curtain or partition that ensures privacy.

The law applies to all employers.  In narrow cases, certain smaller employers with fewer than 50 employees can establish that compliance provisions would cause an undue
hardship. As such, workplaces of all sizes should have a plan to accommodate nursing mothers, irrespective of whether they currently employ pregnant or nursing workers.

Companies that fail to meet these standards could face lawsuits from their employees. Those who are not given adequate time and space to pump can file a complaint with the U.S. Department of Labor. In addition, workers harmed by their employer's non-compliance can seek the legal and equitable remedies available under the FLSA. Remedies can include reinstatement, promotion, payment of lost wages, or additional liquidated or compensatory damages, and make-whole relief for any economic losses suffered as a result of the violation.

Enhanced Accommodations During Pregnancy

Like the PUMP Act, lawmakers introduced the PWFA to fill gaps in existing legislation. While the Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities, and the Pregnancy Discrimination Act (PDA) bars discrimination based on pregnancy, childbirth, or related medical conditions, the law previously granted few explicit protections for pregnant workers in need of accommodations.

PWFA went into effect on June 27, 2023, and applies to any company with 15 or more employees. Under PWFA, employers must offer accommodations that support workers with limitations linked to pregnancy, childbirth and related conditions unless the organization can prove that doing so would constitute an undue burden.

The possible interpretations of PWFA are broad. The U.S. Equal Employment Opportunity Commission (EEOC) is expected to issue final regulations to help employers understand its implications. However, the EEOC proposed rule provides specific examples of possible reasonable accommodations, and those that would likely deemed reasonable in virtually all cases. These accommodations include, but are not limited to, allowing employees to carry water and drink, as needed; allowing an employee additional restroom breaks; allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and allowing an employee breaks, as needed, to eat and drink.

Exactly what form accommodations take will depend on the individual employee's needs, and organizations cannot dictate which accommodations they provide. Instead, the law calls for an interactive process whereby workers and employers discuss the employee’s known limitations and potential accommodations. The PWFA also contains anti-retaliation language. This stipulates that companies can't take adverse actions against employees based on their request for accommodations.

Adapting to New Regulations

Much of the legislation in the PWFA and the PUMP Act is aimed at codifying protections that previously existed within a narrower context. As a result, some companies will only need to make minimal adjustments to their established procedures. Many have likely been providing a lactation room to nursing employees for over a decade under the Break Time for Nursing Mothers Act.

That said, organizations should review their policies and verify that they comply with the legislation. Companies can anticipate new requests for accommodations, particularly under the PWFA. To prepare for this, employers should have a designated procedure in place to respond to requests. Organizations should also train supervisors to navigate this process effectively. Often, managers will be the first to field requests and grievances.

Lastly, employers must be aware of regional and local ordinances. The federal legislation does not negate state and city laws with more robust provisions for pregnant and nursing mothers.

The PUMP Act and the PWFA clear the way for a safer, fairer workplace for pregnant and nursing employees. Employers who haven't taken steps to comply should revisit their policies and practices immediately to verify they are granting the appropriate accommodations.

In addition, companies need to ensure that both their leadership teams and front-line supervisors understand the ramifications of the new legislation.

By reinforcing awareness of these laws at every level of the organization, companies can create an environment that not only meets its legal obligations but champions the rights and needs of its workforce.
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Patrice Arend is a partner in the Detroit area office of Taft.