When Tim Newton, guest speaker at the Southwest Gwinnett Chamber of Commerce’s Thursday Thought Leaders breakfast in October, said employment issues aren’t dire right now he knew that some audience members would be incredulous.
“There’s so much in the world that’s going on [in] other fronts that, from an employment law perspective, from a legal perspective, it’s kind of calm, you know,” he told the small business owners, corporate sponsors, nonprofits and others gathered. “But that doesn’t mean it will stay that way.”
As a partner at Constangy, Brooks, Smith & Prophete, LLP, he represents employers in state and federal court litigation involving employment discrimination under the Age Discrimination in Employment Act, Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act (both individual and collective actions), the Family and Medical Leave Act and other state and federal laws.
Newton regularly counsels and guides clients on employee relations issues, working with them to develop strategies to deal with and resolve these issues. He also presents training sessions, including harassment, diversity, FMLA/ADA, investigations and proper employee documentation.
In his presentation at the Hilton Atlanta Northwest, he outlined some of the workplace issues his clients are facing right now, including:
- The Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations for pregnant employees, such as lighter duty or modified schedules, without undue hardship.
- The Pregnancy Discrimination Act, noting that it differs from the PWFA because it mandates accommodations rather than just non-discrimination.
- Marijuana policies in Georgia where employers can maintain zero-tolerance drug policies even for medical marijuana users.
- Potential biases in AI hiring tools and the importance of regular audits to ensure compliance and avoid discrimination.
Pregnant Workers Fairness Act
Enacted in June 2023, the Pregnant Workers Fairness Act is supposed to provide protections for pregnant and postpartum workers.
“It was modeled after the Americans with Disabilities Act, but it focuses exclusively on pregnancy, childbirth and related medical conditions,” said Newton. “Its stated purpose is to ensure employers provide reasonable accommodations to workers affected by pregnancy and related conditions, and it closes the gap between the Pregnancy Discrimination Act.”
Key provisions include the requirement for employers to provide reasonable accommodations and the prohibition of retaliation against employees for requesting accommodations. The act covers employers with 15 or more employees under Title VII and includes both job applicants and employees.
Although on its face, the law seems pretty self-explanatory, the definition of a qualified employee under the PWFA is different from other laws.
“It’s someone who can perform the essential functions of the job with or without reasonable accommodation,” he said.
Examples of reasonable accommodations include job restructuring, schedule changes and providing light duty or telework.
“Now, you don’t have to have a specific medical condition. It covers anything related to pregnancy and childbirth,” said Newton. “The mere fact that you are pregnant — current, past or [have the] potential [to be pregnant] — applies.”
Details of the law
The law includes infertility, fertility treatment, use of contraception, termination of pregnancy (including miscarriage, stillbirth or abortion) and pregnancy-related sickness (ranging from nausea and vomiting to edema, preeclampsia, carpal tunnel syndrome and other pregnancy-related conditions). And now, those qualifications also include lactation and issues associated with lactation, menstruation and other related medical conditions.
“There’s a long list,” he added. “This is where it gets a little different, and I believe that it’s going to cause some problems for employers.”
The law applies to pregnant employees who are qualified if the inability to perform their essential functions is temporary and the essential functions can be performed in the near future.
“What’s the near future?” Newton asked rhetorically.
If the employee is pregnant, it’s presumed that they could perform their essential functions within, generally, 40 weeks of the suspension, which is the approximate time of the pregnancy. However, the statute sees pregnancy as two different conditions — pre-birth and after the baby is born.
“So, you could have a situation where a pregnant worker, because of the pregnancy or anything related to it, is unable to perform essential functions for the first 40 weeks while they’re pregnant, and then the next 40 weeks after the baby’s birth, which means up to 80 weeks potentially,” said Newton.
He emphasized the importance of the interactive process in determining reasonable accommodations for pregnant employees. Employers cannot require employees to accept proposed accommodations. The act does not require specific forms for documentation, but the process must be simple and not deter the employee from seeking accommodations. And employers can delay accommodations based on failures to complete forms, but must start the process and provide appropriate notice.
Employers must also consider the length of time the employee will be unable to perform essential functions and whether there are other employees or third parties who can perform these functions.
With all that being said, Newton suggested best practices:
- Make sure policies are clear, provide training for relevant roles and establish a formal interactive process for reviewing accommodation requests.
- Be prepared for potential resentments among the employees who may have to cover for pregnant employees and ensure clear communication about the law.
Marijuana in the workplace
Although marijuana use remains largely illegal in Georgia, there are limited exceptions for low-THC oil for medical use.
“It was in 2015 that Georgia allowed specific medical conditions in the outline to use low-THC oil (less than 5%),” said Newton. “One of the conditions is unmanageable pain. So, you can imagine that’s going to sweep up a lot of different conditions.”
And with more states making recreational use legal, the laws continue to fluctuate across the country. However, employers in Georgia have the right to drug test applicants and employees for marijuana and can take disciplinary action or terminate based on positive tests.
“We represent manufacturing companies, and over the past several years, they’ve said, ‘You know, we’re just not drug testing for marijuana unless it’s an extreme safety-sensitive position, and the reason is, we don’t want to lose too many workers,’” Newton added.
It’s hard to find good workers and, in some cases, it’s even hard to find any workers. So, more employers are willing to overlook it when employees smoke marijuana as long as they don’t come to work impaired. However, the Georgia Growth and Workplace Act still applies to employers using state contracts and allows for zero-tolerance drug policies.
Newton suggested that employers develop clear drug policies, provide training and ensure that their employees understand the company’s stance on marijuana use.
Artificial Intelligence in employment law
“In the employment context, people are using AI for all sorts of things — machines or systems that perform tasks such as hiring, managing and evaluating employees, screening resumes, interviews and analyzing candidate profiles; algorithms for predicting job performance and cultural fit; and employee management, monitoring productivity, assessing tasks and lots of other things in the HR process,” said Newton.
But depending upon the algorithm that the AI program is based on, it can show inherent biased results that reflect human biases. This can lead to discriminatory hiring practices.
“We’ve seen cases that are being filed by the EEOC related to AI and the hiring process. [The cases] allege that they’re shrinking out people because race, gender, disability and other protective classes, not intentionally, but inadvertently, because of the way that [the] AI process is implemented,” he said.
Newton warned that employers should ensure compliance with AI use, conduct regular audits and provide transparency about how AI is being used.
For more about the Southwest Gwinnett Chamber of Commerce, including upcoming events, visit southwestgwinnettchamber.com.
