Faculty Publications

Working parents and caregivers in the United States struggle to balance the dual demands of work and care. Many working caregivers need flexible work arrangements (FWAs)—changes to their hours, schedule,
or location—to allow them to balance work and care. But access to flexibility remains out of reach for many workers and is least accessible to the most marginalized. The COVID-19 pandemic underscored this problem, as huge numbers of women dropped out of the workforce to care for family. While no federal or state law requires employers to grant FWAs to caregivers, several states and localities have passed “right to request” laws, which establish steps employers must follow when workers ask for flexibility. Several cities go further to provide caregivers with limited rights to FWAs. One city, San Francisco, responded to the pandemic by granting caregivers robust legal rights to FWAs.

This Article offers the first analysis of FWA laws since the start of the pandemic and since passage of the nation’s strongest FWA law in San
Francisco. This Article uses three case studies to interrogate how FWA statutes across the country protect or fail working caregivers and exposes gaps in protection. Using San Francisco’s law as a model, this Article argues that other states and cities should respond to the crisis of care exposed by the pandemic by passing comprehensive flexible workplace laws. This Article offers a roadmap for legislative action, recommending that future FWA laws should go beyond the right to request and grant broad, substantive protections that cover a diverse array of workers. Building on prior scholarship advocating for accommodation of care givers in the workplace, this Article argues that legislative intervention is needed to ensure access to flexibility irrespective of income, education,
race or gender.

Women returning to work after giving birth, and who wish to breastfeed their child often need modest adjustments to their job or workplace that allow them to pump breast milk at work, such as break time and a clean, private room. But what if an employer denies this request or fires a woman for asking? The federal Pregnancy Discrimination Act (“PDA”) prohibits employers from discriminating against workers based on their pregnancy, childbirth, or “related medical conditions.” Under the PDA, as interpreted by the Supreme Court in Young v. UPS, employers must grant pregnant workers accommodations only if they grant similar accommodations to non-pregnant workers, such as workers suffering from off-the-job injuries. This means a pregnant worker who is unable to prove that her employer accommodates non-pregnant or non-pumping workers is not entitled to accommodation under the PDA. In addition, many courts have found that breastfeeding and lactation are not “medical conditions” related to pregnancy and thus not protected under the PDA at all. This narrow view of the PDA has resulted in continued barriers to fair and equal treatment of women in the workplace, forcing mothers to choose between breastfeeding and keeping their job.
In recent years, some federal courts have rejected the limited reading of the PDA that excludes lactation claims, indicating a movement toward a more inclusive and progressive judicial standard. In addition, a patchwork of local, state, and federal laws has sprung up to fill the gaps in protections for pumping workers. But these laws do not go far enough. Federal law, in the form of the 2010 ACA amendment to the Fair Labor Standards Act, is a step in the right direction but lacks a clear enforcement mechanism. Local and state accommodation laws provide useful frameworks for how a clear federal standard might look but leave out workers in nearly two-thirds of states. This Article argues and proposes suggestions for a robust federal Pregnant Worker’s Fairness Act that would require all employers to grant workers reasonable accommodations related to pregnancy, childbirth, lactation, and other related conditions.