Columns

The ripple effect: A look back at Mayfield v. ASC Inc.

April 10 ,2024

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California.
:  
JJ Conway

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.

—————

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

Global crises warrant more than just faint media attention

April 03 ,2024

We’ll begin with an unfair, unjust and ugly truth: Once again, the world is condemning Israel for the war in Gaza, while ignoring other disasters, some much worse, around the globe.
:  
Berl Falbaum

We’ll begin with an unfair, unjust and ugly truth: Once again, the world is condemning Israel for the war in Gaza, while ignoring other disasters, some much worse, around the globe.

Not only does the world give Hamas a pass -- the war would be over immediately if the terrorist organization laid down its arms -- but it expresses little anger or concern over other global humanitarian crises.  
Here are just a few facts as reported by various sources:

--In the Sudan, conflict has produced “one of the worst humanitarian nightmares in recent years,” says the U.N. Three million children have been displaced, more than the entire population in Gaza. More than 70,000 are facing malnutrition.

--Nearly seven million people have been displaced in the Democratic Republic of Congo, amid accusations of mass killings.

--In Yemen, 250,000 have died in conflicts with 20 million needing assistance.

--In the Central African Republic, nearly 6 percent of the total population, it is estimated, died in 2022.

In Ukraine -- remember Ukraine? -- Russia is executing thousands of civilians and has abducted ten of thousands of children.

London’s International Institute for Strategic Studies states in its latest study there were 183 conflicts in the world in 2023.

This hypocrisy, of course, is not new. Since its founding in 1948, Israel has been the victim of a double-standard, fighting several wars initiated by neighboring Arabs states determined to destroy the Jewish state and has been the victim of countless terrorist attacks.

Regrettably, little can be done to change that reality -- as unfair as that may be.

It is futile for Israel and its supporters to argue that civilians die in all wars, indeed, generally in greater numbers than those in the military. Yes, the Allies deliberately leveled several German and Japanese cities, killing tens of thousands in World War II, and two million died in Vietnam. Do we need mention the two A-bombs?

But yelling “hypocrisy,” “unfair,” or “Hamas uses civilians as shields,” while all true, is a waste of political energy, and does nothing to quell the critics’ voices. Worse, arguing that others have committed humanitarian disasters as well does not alleviate guilt, it exacerbates it. We don’t accept the “Johnnie did it too” excuse from our children. And, as Jews, we have always put a premium on human life, even the lives of our enemies.

I have written about the world’s hypocrisy in previous columns, but the debate over Gaza must be broader and more encompassing; it cannot just end there.

Not only has Israel failed in effectively refuting unjust charges, but it has given fodder to critics with fiery, insensitive and inciteful language.

Prime Minister Benjamin Netanyahu and his government have inflamed the political rhetoric and hatred directed at Israel.

They have brazenly ignored the plight of Gazans and used provocative language in pledging to continue its miliary operations, the critics be damned.

Israel’s uncompromising stance has put undue pressure on President Biden, Israel’s important, prominent and invaluably ally. Indeed, Biden has endangered his reelection with his support of Israel.   

A display of diplomacy and expression of sympathy for the loss of civilian lives surely would have been welcomed by some, particularly those who understand Israel’s conundrum but find themselves politically pressured to join the unending chorus of criticism aimed at Israel.

As a result, Israel is becoming more isolated daily and eventually may pay a price in cancelled economic pacts, strained relationships with allies, loss of vital intelligence gathering with other countries, impairment of partnerships in dealing with Iran and its proxies and other serious repercussions.

It could have much different if, for instance, Netanyahu had addressed the world, and Gazans in particular, with understanding along the following lines:

“We grieve the death of innocent civilians. It is heartbreaking and gut-wrenching.  We did not choose this war. Indeed, thousands of Gazans crossed the border daily to work in Israel; we had programs to take sick civilians to our hospitals.
We had hoped that when we left Gaza in 2005, we could live side-by-side in peace.

“We hoped that Hamas would use the billions of dollars it received in aid to build an infrastructure that would improve the lives of Gazans with educational, medical, and other vital services. Instead, it built tunnels in preparation of this conflict.

“Hamas chose war on October 7 with a savage attack and butchery that was unimaginable. There was no war October 6 and there doesn’t have to be a war tomorrow. All Hamas had to do is lay down its arms.

“It was another Israeli prime minister, Golda Meir, who said, ‘We can forgive [you] for killing our children. But we cannot forgive [you] for forcing us to kill your children.’

“To the Gazans I say, Israel prays this war will end soon, and we will do what we can to restore Gaza and pledge to help you rebuild your lives.”

If Netanyahu had only displayed more statesmanship and did not cater to the baser instincts of some of his ministers and his far-right constituency. And he could have -- nay, should have -- provided much needed humanitarian aid for civilians.

Netanyahu’s political opportunism has cost Israel dearly. As New York Times Columnist Thomas L. Friedman observed:

“I am seeing an increasingly rapid erosion of Israel’s standing among friendly nations -- a level of acceptance and legitimacy that was painstakingly built over decades.”

Now the question becomes: Can that acceptance and legitimacy be restored?

—————

Berl Falbaum is a veteran political journalist and author.

Threat of nuclear war should put U.S. on high alert

March 27 ,2024

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.
:  
Berl Falbaum

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 Russia 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.

—————

Berl Falbaum is a long-time political journalist and author.

Sale of ‘cookies’ and biometrics: Another form of corporate insider trading?

March 20 ,2024

For decades, advertising expenditure has been on the rise. Companies are now spending over 300 billion dollars a year peddling their products and services. Consequently, acquisition of market data for creating “targeted” ads to consumers is of paramount importance to sales revenue.
:  
A. Vince Colella
Moss & Colella P.C.

For decades, advertising expenditure has been on the rise. Companies are now spending over 300 billion dollars a year peddling their products and services. Consequently, acquisition of market data for creating “targeted” ads to consumers is of paramount importance to sales revenue. To provide perspective, in 2021 the global market for data collection (and analysis) was estimated to be worth nearly $17.7 billion dollars. However, the clever pitches and wild imaginations of the Mad Men advertising world of the past have been long surpassed by technologically innovative ways of determining what consumers want — and, more importantly, what they need.

Has the quest for consumer preferences gone too far?

For years, internet search engines have served as windows to our consumer souls.  “Cookies,” the small pieces of text sent to a browser by a website we visit  — under the auspices of helping to revisit the website after leaving — have proven to be incredibly useful in determining the interest levels in commercial products and services. In the last several years, tech giants have come under sharp criticism for their clandestine collection of consumer interests, resulting in multiple class action lawsuits for the unauthorized collection, distribution, and sale of our cookie data.
Yet, the practice of acquiring data continues and has evolved further with the public’s heavy reliance on voice recognition software.

Today, our voices, fingerprints, and facial features are being recognized and digitally stored (and shared) without consent, raising legal and ethical concerns of an alarming nature. While it is certainly convenient to ask Siri to call a friend or family member, it is frightening to think that “she” hears and records everything that we are saying without our knowledge or permission. All of us have experienced engaging in a private discussion about an interest, say golf, and within minutes pick up our phone or log onto our computer to be inundated with advertisements centered around golf products, accessories, and destinations. Thus, raising the question, “Do we have a privacy right against the unauthorized use of digitally stored information for advertising purposes?”

Recently, Google settled a consumer protection lawsuit for a whopping $5 billion dollars in a case alleging that Google’s analytics, cookies, and apps allowed it to track consumer activity even when they set Google’s Chrome browser to “incognito” mode and other browsers to “private” browsing mode. Brown v Google, LLC., U.S. District Court, Northern District of California, No. 20-03664. At the center of the controversy was whether Google had made a legally binding promise not to collect users’ data when they browsed in private mode. During the summary proceedings, the court ruled that Google’s privacy policy and other statements made by the company suggested that there were limits on how and what data information may be collected.

Interestingly, most states do not have specific legislation carving out civil causes of action for the unauthorized collection and sale of data. In fact, only five states have comprehensive data privacy laws. The lack of legislation and statutory penalties for the unauthorized collection and sharing of cookie data provides a convenient defense to the nature and extent of “damages” the unauthorized collection of browsing history and web activity. In other words, tech companies are asking, how are consumers hurt by advertisements for the products and services that those same consumers are actually interested in? In Brown, plaintiff’s claimed damages under several state statutes, including the California Wiretap Act, in addition to the right to privacy under the Fourth Amendment, including the disgorgement of profits related to unlawful internet tracking.

In Illinois, lawmakers passed a privacy regulation prohibiting the unauthorized collection and distribution of biometric information like fingerprints, eye scans, voiceprints, and facial geometry. BIPA, which stands for the Biometric Information Privacy Act, carries stiff statutory penalties for the unlawful collection of biometric data allowing the prevailing party to recover $1,000.00 for each negligent violation and $5,000.00 where the conduct is determined to be intentional or reckless. In perhaps the most consequential BIPA decision of 2023, Cothron v White Castle, Inc., the Illinois Supreme Court ruled that when a party collects, captures, or otherwise obtains a person’s biometric information without prior informed consent, a violation accrues. White Castle estimated the impact of this decision would subject the company to over $17 billion dollars in damages.
While biometric data may be used for far more nefarious activities, i.e., hacking, than run of the mill cookie data, the legislation provides a neat blueprint for other states to follow in crafting internet privacy legislation.

In the meantime, a Michigan “personal data and privacy” act sits in committee with proposed civil penalties, including fines of up to $2,500.00 per violation. If passed, the act would surely result in sweeping litigation within the state — the likes of which could prove devastatingly costly to companies that chose to engage in the unlawful acquisition and sale of data.

—————

A. Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.

25 years of employee benefits: A look back at mission-driven cases that changed the law

March 13 ,2024

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.
:  
JJ Conway
J.J. 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.

—————

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

Navigating new work provisions for pregnant, nursing employees

February 28 ,2024

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

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.

_____________

Patrice Arend is a partner in the Detroit area office of Taft.