Episode 530 | Host: Emilie Aries | Guest: Rachel Shaw

How can managers support equitable disability accommodations for everyone?

The Americans with Disabilities Act (ADA) isn’t perfect, but it was a groundbreaking step in the right direction, expanding key rights and protections to workers with all kinds of disabilities, whether they be permanent, temporary, visible, or entirely unseen.

Despite becoming the law of the land, too many leaders are unaware of how to live up to the ADA—not only to remain legally compliant, but also to do right by all workers. Luckily, there are experts like today’s guest out there to shed light on the intricacies of the law and help educate us all.

Rachel Shaw is a leading strategist in workplace inclusion and disability compliance. She runs a nationally respected consulting practice and is the author of The Disabled Workforce: What the ADA Never Anticipated, which received a 2017 North American Book Award. Her insights add clarity to the discussion on how modern work challenges traditional assumptions and how we can do more—as leaders and employees—to make workplaces work for everyone.

The gap between the intent and reality

When the ADA was released in 1990, it focused on specific issues like mobility, hearing, and vision impairments. Today, we know that there are hundreds, if not thousands, of disabilities of varying degrees of visibility that deserve workplace acknowledgement. In her consulting work, Rachel identifies two key things employers need

Leaders must have a process in place to handle every request. This removes the potential for unequal treatment from one person in need of accommodation to the next.
Managers must become aware of their own biases and beliefs. I like to say that good management processes are always part of the solution to bias, and that’s so true in disability compliance. We absolutely need to work on checking our knee-jerk assumptions about the people who request accommodations. Still, the errant beliefs of individual managers can’t cause as much damage when the organization has a solid, documented process in place.

All too often, the HR hire with the least experience is thrust unprepared into this particular role—Rachel was one of them, decades ago. That’s part of what prompted her to create Shaw HR Consulting, where she and her team help flatten the learning curve for all managers navigating these waters.

The disability interactive process “hallway”

In The Disabled Workforce, Rachel likens disability accommodation to a “hallway”. One of three situations generally triggers the start of the journey along this path:

The employee tells their manager they require an accommodation;
The employer perceives that the employee may require an accommodation because they are not meeting performance, attendance, or safety standards, so they initiate a conversation;
The employee brings a medical note, requesting an accommodation.

Once the process is triggered, the manager (or appropriate HR person) and the employee enter the foyer of the process hallway. The first step is to collect data. Assumptions can bring the hallway to an abrupt end. For instance, if someone in a physical job has a heavy lifting limitation, the manager might assume it means they can’t lift anything. However, details from their doctor can clarify the worker’s unique definition of “heavy”. Sufficient data can move a “no” toward a “maybe” or a “yes”.

After this, it’s vital to keep the worker involved in the discussion. The manager and HR professional must work to listen, understand, and explore the options. Having a process like this prevents those knee-jerk assumptions we’re prone to making. Just because we know neurodivergence exists or have a vague, generalized knowledge of disability doesn’t mean we know anything about a specific person’s needs. In many cases, providing an accommodation winds up being less complicated than the manager first believed, enabling the worker to continue being a productive contributor.

The truth about the financial burden of accommodations

One of the complaints favored by the anti-DEI cohort is that accommodations for people with temporary or permanent disabilities are an unfair strain on the company finances. Unfortunately for them, the data reveals this for what it is: fake news.

The data shows that the majority of accommodations cost less than $300. That’s not per year, either; that’s total. In fact, in most of the organizations Rachel works with, her clients end up spending $150 or less. Often, the adjustment is as simple as allowing the employee to work remotely or have flexible hours. Accommodations like that are often free, and if they have any impact on productivity, it’s typically a positive one.

Rachel finds that changing an employer’s mindset is usually harder than convincing them to open their pocketbook. An accommodation means the employer must modify their preferences for how their workers show up and work. Rachel helps her clients get to the bottom of what’s really bothering them about a requested adjustment. All too often, it’s little more than “we’ve never done it that way.”

One great way to reduce the financial “burden” of disability compliance is to start thinking about it before an employee asks. Rachel gives the example of putting the microwave on a lower level when redesigning the office kitchen. Bringing someone with a disability onto the decision-making team for renovations - both of spaces and policies - enables teams to design for inclusion from the start.

How to get the accommodation you require (and deserve)

One of the many disabilities that was never spelled out in the ADA was pregnancy. When a person is pregnant, as well as in the weeks or months following the birth, they may require a variety of accommodations. The Pregnant Workers Fairness Act of 2023 finally put those requirements into law.

You don’t know what you’ll get and what you’ll be hassled about until you ask, Rachel says. Her recommendation is to only ask for what you need (such as working from home when morning sickness is at its worst) when you need it, not before. It’s also important to remember that the PWFA states workers have the right to ask for light duty, and as long as it is “reasonable,” they don’t even need a doctor’s note.

If an employer does demand a note, Rachel encourages getting as detailed a prescription from the doctor as possible. Rather than “patient needs to work from home,” the note might clarify they need to avoid commuting, for instance. The more information you can provide initially, the less lengthy the back-and-forth will be with the HR team or manager.

If pushback does occur, get an advocate—a lawyer or a consultant like Rachel—on the phone with the manager as soon as possible. It can feel pushy or like an unnecessary escalation, but often the manager just doesn’t know the rules, and setting them straight early on settles the whole thing more quickly.

Acknowledging the risk of pregnancy disclosure

Before I let Rachel go, I wanted to address the very real concern facing people in states with laws that remove their bodily autonomy. If a person faces risks for disclosing their pregnancy, how do they proceed?

Rachel’s advice stems from her detailed knowledge of the fine print. She suggests the pregnant person find a way around identifying it as a pregnancy. If it’s morning sickness, a doctor can write a note blaming “gastrointestinal issues” that require working from home. Wherever you live in the U.S., the name of your disability is protected information. You never have to disclose the condition or concern that is prompting your accommodation request.

Rachel also reminds everyone that no one is required, in any state, to disclose pregnancy or disability when applying for a job. As long as you believe you can do the job with reasonable accommodations, keep these concerns to yourself until the paperwork is signed.

Rachel stresses that we need to stop thinking of disability accommodations as being any different from the myriad accommodations we make for our employees, which simply recognize their individuality. They aren’t trying to cheat the system any more than Andrea from accounting is, when she needs to leave early for an appointment or Simon from the dev team requests a different kind of keyboard.

The primary concern of every manager and HR professional at every company should be to make sure their employees have what they need to be contributing, content members of the workforce. That means making sure that the workplace works for them.

How are the topics Rachel and I discuss showing up in your workplace—is your employer trying to understand or pushing back against changes to the way it’s always been done? If you have a disability, are pregnant, or are considering becoming pregnant, I want to know what you’re doing to learn about and advocate for your rights. Share your experiences and find support in the Courage Community on Facebook or our group on LinkedIn.

Related links from today’s episode:

Become a more informed and inclusive leader with LEVEL UP:

[INTRO MUSIC IN]
EMILIE: Hey, and welcome to the Bossed Up podcast, episode 530. I'm your host, Emilie Aries, the Founder and CEO of Bossed Up. And today we are joined by one of HR's boldest voices.
[INTRO MUSIC ENDS]
Rachel Shaw is widely recognized as a leading strategist in the world of workplace incident inclusion and disability compliance. She's earned industry awards, built a nationally respected consulting practice, and in her 20 plus years at the executive level, broken through the glass ceilings that too often limit women in leadership. But here's the kicker. Rachel isn't simply an HR expert. She actually wrote the guidebook on how all of us can be better when it comes to disability inclusion.
Her book, The Disabled Workforce: What The ADA Never Anticipated pulls back the curtain on the law we thought we understood and gives managers, leaders and inclusion advocates a practical people first playbook for building culture while staying legally sound. In today's conversation, we'll dig into what the ADA didn't expect, how modern work is challenging traditional assumptions, and how even more recent laws protecting workers’ rights, particularly the Pregnant Workers Fairness Act, are changing the way in which we build inclusive work cultures. Rachel, thank you for being here.
RACHEL: Thank you. Great to be here.
EMILIE: So tell us a little bit about how you became the author of The Disabled Workforce. Like, what led you to focusing on this topic?
RACHEL: Yeah, so, I mean, my origin story is really that I was hired in to do this work. Like most people who get into HR, they gave it to the gal with no experience and absolutely no business doing disability compliance, and no one knew how to do it. And so, I spent really the first 10 years of my career realizing that I was the least equipped person to help people who had a disability who needed an accommodation. Because I didn't have any training. And all I could get was attorneys telling me what not to do or you'll get sued, but no one telling me how.
So I just started figuring it out and trying and failing and fixing and doing better. And then I was doing it as part of my job in HR. And then I had my daughter 19 years ago, almost 19 years ago, and I was approached by a consulting company that I had used for this work, and they were interested and I started doing some consulting. And then, you know, a couple years after that, started my own consulting business. And all I do now is focus on helping employees with disabilities and employers to do the work right so that we can include, we can ensure that disabled people have equal access to the workplace, whether permanently or temporarily disabled.
EMILIE: I love it. That's amazing. It is a little shocking, isn't it, how often companies are just, like, using this compliance metric or thinking of compliance in such a haphazard way. It's a little alarming, like, how do we keep ourselves out of hot water from a liability standpoint and do the right thing by people? Seems like it would warrant some more care in how we approach it. And yet this idea of sort of figuring it out as you go is not all that uncommon, is it?
RACHEL: It's not. And I agree. That's really what I do. I train and I help. There's a lot of really good people out there that want to do the work really well inside an organization, but they don't know how. And, you know, the worst thing to do is to give someone who has a need for something like support and disability compliance, give them someone who is untrained and unpracticed because learning on someone is not the best option.
So we go in there to try to help increase their learning curve, right? You get in there, you teach them the right process, these protocols, but also teach them how to do it. I always say it's hearts and minds work, right? It's not just the compliance piece. It's not just the mind work. Although sometimes you have to explain to people why you have to do it and why it's important. But you got to care. You got to care deeply about the work you're doing and why you're doing it and have an understanding of that as well. So, yep, it is unfortunate, but it's. It's the niche I'm in to help people ramp up that. That lack of knowledge so they can do the work better.
EMILIE: That's great. So many women listening to this podcast may be managers who want to do right by their team members, but, like, when a team member brings up anything related to health or disability, it's like, I'm not an expert, I'm not an HR compliance expert, and that can be really intimidating. Or we might have listeners tuning in who are like, yeah, I'm going to need a workforce accommodation, either temporarily or permanently. As one of our past guests on this topic has mentioned, like, disability is the one aspect of DE and I where every one of us, if we are lucky to live long enough, will become disabled at some point in some way.
And so, regardless of sort of how you're coming at this, what are some of the things that we need to know as managers, as leaders who care deeply about doing right by people, about the implications of the ADA, the Americans with Disabilities Act, like what is it that assuming your title of your book sort of alludes to, what is it that the ADA didn't really anticipate the gap between its intent and today's realities of the workforce?
RACHEL: Yeah, I think, you know, when the ADA was written it was thought, it thought of people in wheelchairs, mobility issues, hearing and vision. And that is not what workplaces are struggling with now. Not to say employers don't sometimes do a terrible job when someone needs a simple accommodation for one of those disabilities. But primarily we're focused in workplaces. As you said, if you live long enough, everyone's going to have a disability need, whether it's a good disability need, like a pregnancy disability, a happy one, or whether it's going through something difficult in your life. And you know, I think the two things that we need to be really aware of with, ah, from an employer's perspective is as a manager, number one, you got to have some sort of process because if you're not having high volume of requests, you're not going to always know how to manage it.
And that goes to our second issue. If you don't have good process, we really need to be aware and I think your listeners are, we're much more self aware I think than maybe the general management population. But you've got to be aware of your own biases and beliefs. And what often happens, someone who asks for an accommodation or is struggling medically, psychologically, medically, physically, you know, someone who's coming in. The issue that we often see is that our brains do this thing, right?
So if the person is beloved and valued and respected and a hard worker, our brain immediately goes to how do I immediately help them? Or this is legit. And if that person has been a difficult employee, a challenging employee, maybe an employee that you didn't hire and you wish nobody else had either, our brain sometimes goes to not needed, not medically needed. They're abusing the system, they're lying. And even subconsciously it starts to guide what we might do or make that person do in response.
And so, you know, the ADA didn't really equip managers for dealing with what can be sometimes overwhelming numbers of accommodations like leave. It didn't really equip us with thinking about things like neurodiversity and disability compliance. It also was written in a time when there wasn't a lot of woman-based disabilities we were thinking of. So pregnancy wasn't really thought of. And so that's where we just, we need a strong process, not complicated, not hard, but you gotta have something that when someone has a need, you know what to do, you know that you're getting them to bear.
And then you also have to be very conscious that I'm sure your listeners aren't this way. But a lot of managers, immediately when they're asked for something leave or a workplace accommodation, their brain immediately sort of goes to, no, that will be expensive, that's too hard, or they don't need it. And we need to be very careful not allowing our emotions, our beliefs or biases to be guiding decision making.
EMILIE: Totally. And it's so funny, right, because there's been such pushback on all things DEI in recent years. But, every conversation I've ever had about diversity, equity and inclusion in the workplace is like, good process, good management process is the solution to bias, right? It doesn't even have to be mal intent or being a good person. Like, that's not what we're talking about. Like that, I'm not interested in being woke as a manager. I'm interested in there being processes that are designed with equity at their core.
And so I think your process that you propose in the book, the interactive process process, is a really straightforward playbook that you use this wonderful metaphor around the hallway. So tell us a little bit about the disability interactive process hallway. What are the steps? What does good look like? And what should frontline managers know about their role?
RACHEL: Yeah. So there are three ways that an employer, whether you're a manager or the employer knows they have to start an interactive process under the ADA. Number one, employee requests it verbally, right? No medical note. They just say, hey, I have something wrong, this hurts. Second is if the employer perceives that someone has a disability.
So if an employer is saying, like, they're not meeting my performance, attendance or safety standards, and the employer's like, something's going on, medically, physically, psychologically, the employer actually triggers themselves to have to start a discussion. And the third is if someone brings in a medical note. So that's easy, right? If there's a medical note, we know. So if there's a request perception or a medical note, knowledge, the employer then is supposed to start what we call the hallway foyer, right?
So it's an initial conversation. And what we recommend is some organizations, most organizations have HR, so if you're not doing everything, you know, for you and I, we do everything, right. But if you have like a separate HR, office managers, really, their job is when they are triggered, when someone is verbalizing that something medically might be impacting Them or there's a belief that something medical is impacting, or they get a note, best practice is that an organization should have someone in HR who sort of takes that issue and has what we call the initial conversation and the interactive process or the foyer.
And that first conversation is, hey, did you mean when you said you were so stressed and that's why you missed deadlines, did you mean to tell us that you have a disability in need of accommodation? Or are you just saying like life is really hard, do you need an employee assistance program, like referral, right? And so that first step is to make sure before you open up this legal compliance framework, the hallway, that you're in the right spot. And if you are, then the four steps are really about, number one, getting good data. Because, and I'll give you an example, employers often make accommodation decisions with terrible data. And look, if you're an organization where you say yes to everyone, you don't need more done. If you are an organization where someone asks to work remote and you say yes for an accommodation, if someone asks for a 4/10 schedule and you can say yes, you don't need more. It's the organizations where someone may be, you know, people may be asking for accommodations or need of accommodations and the organization wants to be able to say maybe or is there an alternative to what you want? That's when you need the interactive process.
So the first step is about getting good data and door number one or step number one. Because imagine again, from a management perspective, let's say you have an employee who has they've asked to work remotely, which is one of as we have this new world order of everyone needs to be in person buying coffee at the corner coffee shop, right? It's important our corporate culture, as we're bringing people back to the physical workplace, we are seeing more requests for work, for remote work. And when someone asks for that, the employer has the ability to say, if you can say yes, say yes.
But if you're not sure, then the employer will ask for data. What are the reasons? What are the functional limitations or work restrictions? This often comes up. It's a little easier to understand if it comes to things like someone has heavy lifting restrictions, so a custodian, no heavy lifting, managers will often define heavy. And that often leads to a no as opposed to okay, pause. We're going to go to the healthcare provider and ask what does that really mean? How many pounds can they lift with their right, their left, and both? And that can often get us to more yeses in more ways. So step number one is data.
Step number two is really about communicating with this human as an equal partner in the process, listening, understanding, exploring accommodation options. Step three is holding an interactive process meeting and taking notes. And step four is implementing those decisions. So it's not a hard protocol, but it's one that aims to equalize the power differential that exists in workplaces between management and employees. Equalizing it by allowing data and not the manager's beliefs, perceptions.
And again, these are not bad people. But we come to the table often with our own beliefs and perceptions about disabilities and, you know, we think we know we've seen it. Once we watched a TV show about neurodiversity. We know about it. No, you don't. So it's a wonderful, simple stepped protocol that HR teams can use to allow employees to feel heard, to find yeses when they exist, and when they don't, to create understanding and acceptance.
EMILIE: Yeah, and it does sound like reminding leaders and managers that, like, you don't need to be a neurodiversity expert to understand the importance of depression, ADHD, autism in the workplace, right? Like, you don't need to be a pregnancy expert in OBGYN to understand that everyone's pregnancy is different. We've got so many episodes on those topics. I will link to them all in today's show notes.
But like, it matters, right? It matters, if it matters to your worker, if it matters to your team member, it should matter to you. Remind me what size team, what size company triggers ADA application? Because I'm imagining my husband who works for a small company. I think they're up to like 15 to 20 employees. And he's like, by default, their HR consultant. Which I'm like, this is a huge no, I got them actually to, to. To get an HR consultant because I'm like, you are out of your depth, my friend. You know, like, you need some support here.
But I can just imagine on top of the project management and the client relations and all the things and accounting, all the things that founders of small companies and small businesses have to deal with. Being conscientious around this is like, pretty freaking hard to do. So what is the size that triggers this?
RACHEL: It's low. It's 15 for private and companies. And some states, like, I was just in Massachusetts yesterday and in Massachusetts it's half of that. And for public agencies like cities, county, school districts, it doesn't matter your size. I mean, everybody's going to have, they're going to have more. And it covers, you know, it covers almost every employer, because think about employer who has seasonal employees. So if you have normally five or six full time employees and you hire 10 part timers throughout the year, you're going to hit 15.
And so, you know, what we tell employers is small employers are not going to have HR teams. I mean they're just not going to. And so the great thing is there's some really great. I mean you can use generative AI to kind of answer a lot of your ADA questions. You can also reach out to an ADA person. People like me will talk to small employers that don't need us. And sometimes you just need like a, I have no way to process what I'm being asked because it's not always logical. I just need someone to tell me like what I need to do.
But again, if you can say yes, say yes. You know, if what they're asking for and you're understanding, you can always say yes. Let's try. If it doesn't work, if it impacts customer experience or productivity, then you can revisit. You know, there's no, I always tell employers don't worry about trying something and if it doesn't work, then you have evidence of it didn't work.
EMILIE: Yeah, that's interesting. Okay. And again, we're trying to also do the right thing, do right by people because there's benefits to that for the employer like ROI around engagement and culture and all of that good, retention, and all that good stuff and we want to not get sued. Like, it's probably in your best interest to try to find a way to provide what the ADA calls, reasonable accommodations.
And so, you know, the definition of reasonable is very subjective. And I think it sort of challenges employers, and leaders, and managers, who might have a particular vision for how their team should work. AKA this like rise of return to office mandates. It's like, well, I want butts in seats. And it might challenge you to have to imagine different ways of getting things done if we can be accommodating. So especially when it comes to those invisible disabilities, what do you see managers like struggling with here and how can they go about developing empathy where they might not have it to begin with and like figuring out what reasonable really looks like.
RACHEL: You know, I think that one that the biggest thing every employer should do we're not doing is when they are constructing workplace procedures or guidelines. For example, return to office protocols. Have a disabled person on your team, have someone who has, who has benefits from a remote work. Because I do think we're constructing even just the simple things like when we build kitchens and offices, where do they put the microwaves? If you can put an under, you know, counter microwave, you're not having to accommodate someone who has maybe a wheelchair access need because you've already.
So there is ways to build in flexibility, there's ways to build in options so that people with disabilities don't always have to ask for accommodations, but for the real world, because we are rarely doing that. We're not always including a person with a disability at the table when decisions are made. But what they need to do is just realize, look, there typically three types of people I meet. There's people that I cannot change their heart, so I'm going to change their mind through letting them understand their risk and the compliance. There's people that are all heart and that's not always good as well, right? All they want to do is like, I don't care, I'll take on their work. That's not good as well because it impacts the work group.
But I'm also looking at those people in the middle that just don't have understanding. They truly think that the same issue with DEI. DEI is not about lowering the standards. It's simply about making sure that all people have the same rules, that we have the equal opportunity to compete, right? And that's what disabled people don't get. Better workplaces, they're not asking for better, they're simply asking for unnecessary barriers to be removed so they can have equal access to the, I always say, the benefits and burdens of employment, because, let's be honest, employment has both.
And so, you know, I think there's this belief that disabled people are going to be less productive, be more expensive, their accommodation is going to cost a lot. And so what you have to do sometimes is just bring in that common sense, maybe a little bit of compliance. You have to. But let me show you, you know, why this isn't going to impact sometimes I'll remind managers, forget about disability. You have different people, you manage and you know that, you know, some of your staff, you have to be really soft and, you know, you have to do the feedback sandwich. And other people are like, you're very direct with, right? It's the same thing with someone with a disability is you have to try to figure out, like, how do I manage you to get the best out of you? It's strategic, it's not, you know.
So if you have to accommodate someone, you know, work around and manage, if it really doesn't impact ultimate performance, why not? What. Why is that somehow different than the way you manage Mary and Sally? Maybe differently, because one is very sensitive and one is like, you know, just give it to me straight. So I try to help guide and coach, you know, and we know that. We know that workforces that have disability and diversity in general, we know they're more profitable. We know that our workforce that's coming in, they want to see diversity across the field. And so to compete, you have to make sure you're representing the world, and that includes disability.
EMILIE: Yeah, you touched on this. And I want to also dig into this a little bit. What is the reality around the cost of accommodations? Because I think a lot of managers are reticent to get to yeses because they presume, oh, this is going to really cost us all lot of money.
RACHEL: Yeah. So in the United States, the national average, the average cost of an accommodation is $300 or less. In my work and at my company, we support probably over 5,000 disabled people every year with their accommodation plan. Our average is much lower. We find most accommodations are zero to $150.
EMILIE: Per year?
RACHEL: No total, to get someone accommodated forever.
EMILIE: Okay, wow.
RACHEL: It's so inexpensive, you know, and most accommodations are no money. You know, there are things like additional breaks or flexible schedules, work from home. Oftentimes equipment already exists. You know, I always. You probably don't remember, but for those of us that have worked for a long time, we call the sit-stand workstation kind of the treadmill of the 2020s, right?
Like, you know, people. Some people love it. I love it. I have a treadmill. I have a. I have a sit-stand station. I have a treadmill station. I love it. Most people don't love it. And so, you know, you have equipment around the office, and we can often repurpose it when someone decides it's not something that's useful. And so it's very low cost.
There are some accommodations that are extremely expensive, and they're going to have to do it, ASL interpreters. Get over it. You're going to provide ASL interpreting when it's needed and when there's not a technological option to support you. But, outside of some of those, you know, it's just very rare that in today's world you're spending money on an accommodation, but you're being asked.
I often say employers are being asked to do something that's harder than opening their pocketbook. They're being asked to modify their preferences for how the employee shows up and performs work, and that's where we as humans have to really do some work. Like why is this bothering me? Why am I not willing to do this? What is my concern about having someone flex their start time and work later? What is the real issue as opposed to it's never been done that way or I won't be here, you know. And so those are. It's actually harder to make someone change their preferred management style than to spend a couple thousand dollars.
EMILIE: Right. Which I think back to like how we teach our managers in our LEVEL UP, Leadership Accelerator, like outcome-based metrics tracking. Like how am I being very clear on my vision as a leader? What are we trying to accomplish, team? What are our benchmarks for knowing whether we're on track or not? And it's managers who are not able to, able to manage effectively, just frankly like well, and, and being a good manager and being a data-driven or outcome-oriented manager who struggles because you're married to this process. Like, I want you in the office from 9 to 5. That process to me feels important because I can't define the outcome, that I haven't done the work to define the outcome. So to me like good equity and inclusion work around disabilities or otherwise is it's good management, right? It's like being able to articulate at the end of the day what matters to our customers, what matters to our team members. And that should not be too much to ask, quite frankly.
RACHEL: No. I had a manager once. I one of my favorite stories, I had a manager who really believed you couldn't manage unless you were managing, you know, you're physically looking at that person, right? So you know, I call it manage by looking at the whites of their eyes. And this person had a, you know, a legitimate disability, had gone home for COVID had worked in person prior to COVID, went home for COVID, worked for two years remotely for COVID, did a great job, can do her entire job remotely for the first time in her life. She had never worked from home and she was struggling with a chronic debilitating disabilities, taking high levels of medication, pain meds. She was exhausted by the weekend.
She went home for two years and she told me COVID was the best thing that ever happened to me because the first time in my life I had energy left on the weekends for my family. I reduced my pain meds, I was able to go off some of my therapeutic care. She goes, for the first time in my life I thought I'm going to live to the ripe old age of retirement. And so, when they just arbitrarily decided. And I get it, I get why businesses have choices on what they prefer people do. But when they remove, when they returned everyone to a hybrid three day a week, she, you know, brought in a doctor's note and they fought and fought her and they brought me in and here's what I said. I told the manager, first and foremost, supervising someone is not an essential function in person. Like, you can't argue if she can do her whole job. You have to figure out how to supervise. And if she's not doing her job, you know, there's, there's tools you've got. If they're using like a team software, you can find out if you're worried she's not. No, I know she's doing her job.
So what I said is, what do you want to be doing? And he goes, well, I miss just like, I want to just be able to walk in her office and be like, hey, I need something. I said, so you want to be able to like jump in her office, completely distract her, you know, impact her productivity because, interrupt her day because you want to be able to just like, stream of consciousness. And so what we decided to do, knowing it was ridiculous because he wanted 24/7 access, is during her workday, she would have her Teams, Zoom, her Teams or Zoom, link up all day. Except during her breaks and in her office that she was not occupying, she would have her computer with her so he could jump into her cubicle, she's home. And he could be like, hey, I need you.
We did it for one week. Because he realized how ridiculous it was, how stupid it was. And it was one of those things where, you know, she's always picking up the phone when he calls. He can Teams message her or whatever, instant message. But it was one of those things where we had to kind of get this manager, like clearly didn't go to your Level Up training, but had to get this manager to realize that, you know, what you're asking for is ridiculous and probably creating less work productivity because you're interrupting your staff because you just thought of something.
EMILIE: Yeah. And just also impacting trust, right? Like, what is the message that's being sent there? And I get it. Like, people are freaking out about return to office and managers and executives everywhere are grasping for power, right? In terms of like, how do we leverage power? Like, I think senior leaders really feel entitled in some ways to like the ability to just grab their employees whenever they want them. And so there is this like, weird power shift that COVID in many ways brought about. And I'm wondering how things are going to play out here. So what, the future, the wild world of AI and automation kind of impacts that power dynamic.
You made me think of a question too, that I wanted to ask from a slightly different perspective. We've talked a lot about the leaders who are listening. I want to put ourselves in the shoes of someone who wants to get some accommodations. So perhaps she's newly pregnant and we covered on this podcast before the Pregnant Workers Fairness Act, but I want to talk about it here again with you. And perhaps she's asking to kind of carry forward this remote work example. She's asking for the ability to work from home. She's in her first trimester, she's nauseous all the time. What does she do? Let's say she works for a small business, doesn't have a dedicated HR team. What would you advise someone, knowing what you know about the ADA who's in that position, to set herself up as best she can to get the accommodations that she wants?
RACHEL: What I would tell any pregnant person is always ask for what you need and don't ask for what you don't until you need it, because you want to make sure you get what you need when you need it. And pregnancy is not only when the baby's inside, but when the baby comes out, you're going to have needs as well. So Pregnant Workers Fairness Act,
EMILIE: That is for sure, Rachel.
RACHEL: Yeah, right? And for the last and for 25 years after, as you know. But so what I would say is like, Pregnant Workers Fairness Act. I love that we're talking about it because I think we've learned a lot about it and we're learning more. You may not know this, but there's some like, wonky stuff going on in the federal government right now. You know, I know it's shocking to hear that, but I will say Pregnant Workers Fairness Act is not being challenged for pregnancy. There are even, you know, there's different reasons for it. Some of them you and I would not like why people like the Pregnant Workers Fairness Act. But the reality is it's not being challenged. Like America still wants women to be able to have babies and get pregnant. And that's, so that is being supported. It's not going to go away. So anyone who's in a state without a carry on protective law, you need to understand, like this Pregnant Workers Fairness Act, man, PWFA is here to stay. And it is powerful.
And here's what it says. It says that for the entire pregnancy. A woman has the right to ask for light duty. Light duty means that she can ask for not only the permission to do her whole job remotely if that's what she needs, but if, let's say she has a physically demanding job, let's say she can't do, she's a firefighter and can't do it doesn't, you know, doctor believes it would be best not to be in the. In the field. The Pregnant Workers Fairness Act says that that pregnant person has the right to request a light duty assignment, which means they can work their entire pregnancy, cannot be forced off work, even if they can't do the core duty of their job and get their full wages.
So that's super powerful because most people getting light duty, you know, some agencies may be like, what's light duty? Light duty is very common when someone has a work injury. And so oftentimes people who get hurt at work will be placed on light duty, but it allows, so it's not just I can do my full job, but I need to do it remotely. But it's also for people who may have a component of their job they can't do anymore. The employer can't take them off work and place them on leave anymore. That's huge. So that all of that leave and most, some states, all you have is 12 weeks of protected leave. And so they want to make sure that that leave is protected for when the baby comes out of your body, right?
EMILIE: And so you're talking like FMLA from a federal leave. Yes. Okay.
RACHEL: Correct. And some states have like, you know, um, I do a lot of work in California. They have, you know, seven months of protected leave post baby, right? But not many states have that much time. But if someone is saying I need to work remotely, the law also says that if what they're asking for is logical, the employer cannot require a medical note, AKA they must believe the woman, right? Or the person who's pregnant. So now work from home. I will tell you, most employers, if they don't like it, are going to ask for a note. Fine, get a note from your provider.
And it would be even better if it doesn't, if they want to stop themselves if they work for an employer and they think the employer is not going to want them to work remotely full time during their pregnancy. My advice is don't just have your provider write, work from home. Have them write. Needs to stay close to their doctor, you know, needs to not be sitting in a car and commuting because of bathroom breaks, have them list the reasons or what are called the functional limitations. Because employers have the right, if they get a note that says an accommodation, like, you know, work from home hybrid, must work in this location, the employer has the right in that case to ask for more and just to stop the back and forth. But what I would also say is if someone is being denied and they know they shouldn't be, they should immediately get someone to advocate for them, whether it's a lawyer friend, whether it's, you know, calling a consultant like me, one phone call. Because employers don't know this stuff.
EMILIE: Right. They don't. Well, cause the PF, or is it PWFA, right? It's so new. What did it implement last summer, the summer before or something?
RACHEL: Yeah, yeah. So July of 2023. And no one knew what it was about and they're not paying attention. And we're getting cases, we're starting to see it work out. But I mean, I train across the United States. Like I was, I've been in three states and three days training on PWFA. And people look at me like, what do you mean? I have to give them light duty. I'm like, it's literally written in the code.
And that's really powerful because I know that a lot of, a lot of your listeners are probably what I call, they work behind a desk or they've got, you know, a little bit more white collar jobs. But a lot of our folks are pregnant persons that are working frontline who have to like, retail, whether it's coffee, whether it's retail, whether it's grocery stores, their employers have to let them work during their pregnancy as long as they can do a good portion of their job, but not all of it. And that is, I mean, that's huge. And if they want to be on leave, take it. They can have the leave as well.
And then post baby, I always tell pregnant folks, post baby, don't forget to know your rights. Not only do you have the right for your FML, many states have bonding protections. Most employers provide additional unpaid job protected time if you ask or if it's in your personnel rules. And some states have lactation support where you can ask. And there's no, there's no timeline on that. So if you need accommodations for lactation support, which, you know, again, you do you, you know, whatever you want to do. But if you're someone who believes in that, you do need accommodations. If your job doesn't have flexibility for that, ask for it.
EMILIE: Yeah, I'm still breastfeeding a year or 13 months postpartum right now. And you have rights, right? So rights to breaks. And it, it is a job. So it takes time and energy and effort and intentionality. It's a huge pain in the a**. There's a reason why most people aren't still doing this 13 months postpartum. But you can demand the accommodations from your employer.
And the job protection piece is so key. You can't be let go. Don't let anyone manage you out postpartum because it's not working out. So A Better Balance, too. I had someone from A Better Balance on the podcast we did about this. They've got a great free legal hotline, too. But to your point, call an HR consultant like you call a lawyer. Call a free legal hotline through your state. Call your Department of Labor, right? And they are there to help educate your employer if need be.
RACHEL: Dry for. I mean, I always say employers are not always ignorant on purpose. They just don't know. So try to educate. But I always tell anyone I'm working with that has a disability or a pregnancy accommodation need, don't be afraid because you can resolve it so quickly if you come in strong. If you have a union, bring your union in, right? I hate that we need to sometimes do that. But, you know, sometimes simply showing someone, by having someone that comes in that makes them go like, oh crap, we'll make them call their attorney and they're trying to be like, of course you got to do this.
And then it's resolved. You're not spending three months fighting each other. It's resolved quickly. There's less emotion. It's actually better for an organization if you can help them learn quickly, even if it feels a little dramatic. We're often too nice. Like, you know, and being too nice doesn't always help you. So, again, I, I'm always lovely, but, you know, but you have to be strong and advocate. And that can actually be less detrimental to your relationship with your employer because it isn't them messing up for three months and then having to fix it. And then there's been a lot of emotion. It's just a quick like, oh, I messed up. No big deal. Here you go.
EMILIE: Totally. One of the biggest challenges I see with all of this is., and we did a whole series on disclosure, the risk of disclosure, especially around pregnancy in certain parts of our country right now, we're like, pregnancy is being tracked in some ways, or we have a lot of fears. As someone who dealt with recurrent miscarriage between my two children's births. It's like, I stopped taking gigs. I stopped speaking and training in states where maternal access to abortion care was limited. And so if you're kind of living in fear of sharing your pregnancy or especially in those early days because of your state's lack of rights or lack of bodily autonomy preserved in the law at the moment, how does someone listening weigh the need for accommodation and job protection with like fear of disclosure on something like that?
RACHEL: I think it's really smart. And I will tell you, you should never disclose in an interview that you're pregnant or trying to get pregnant. You should never do it and you have no obligation. You have zero. And you have no obligation to tell an employer upon, when you're interviewing for a job, if you have a disability, even if you know you're going to need accommodation, as long as you believe you can do the job with reasonable accommodations. Because I will tell you, you'll never ever know whether or not they're going to take that into consideration.
And my experience has been even really amazing. People that I like very much are going to use that data and it's not going to come to a decision. So you have no obligation. There's no. It literally says in the law under ADA, you have no obligation to disclose. You just can't apply for a job. You know, you can't do like that. That would, you know, if you're trying to entrap. But no one does that.
When you are, if you are pregnant and you need accommodation, here's what I would recommend is if you are in a state where you are concerned about disorder closing, because let's say you have a miscarriage and then there could be, who knows, someone might report you to whatever, right? And these are real, I mean these are real fears. I thankfully don't live in that state, but I feel for all my, my sisters and my pregnant persons out there who may. What you want to do is consider whether or not you can ask for an accommodation for a disability that's related but not disclosing.
So for example, if you have morning sickness, you could have your doctor say, you know, she has a gastrointestinal issue or she has, you know, we're working with a medical condition. You don't. In no state. No state. Even the states we're thinking might require this. There's no state in America that requires you to disclose a disability name. It's illegal. It's considered PHI, protected health information. So you can, you would just disclose symptoms like needs to have breaks needs to work remotely. If you get challenged and they don't give you the accommodation and you're forced to kind of go to the PWFA, because PWFA is so much more protective. Um, it really is kind of a big shot in the arm for pregnant person, which is so great that it's there.
EMILIE: Compared to the ADA. So you're saying if you can't get your accommodations via the ADA, the Americans with Disabilities Act, you have to sort of ratchet things up to the pPregnant Workers and Fairness Act, then you're disclosing.
RACHEL: Because once you ask for protection center PWFA guarantees you not only the, uh, opportunity to work with reasonable accommodations, meaning you're doing your full job, it also gives you the right to have light duty and some extraordinary accommodations. In PWFA, it literally mentions remote work. It's written in the code. It's a big deal. And it's because it's a post COVID. Right. And there's a lot of really good reasons. I mean, when they wrote it, they absolutely understood.
All they're trying to do is give pregnant persons the same rights that a lot of people with work injuries already have. And most people with work injuries working light duty are men. And so we're trying to equal, equalize who's getting opportunities to work during their recovery. In this case, during they're growing a human right for the betterment of America, of the world, right?
EMILIE: Which apparently is a bipartisan desire to like, be pronatalist now in, in our, in our federal code. So, so interesting to hear your take on all of this. And as a recently pregnant person and mom of two littles and workers rights advocate, I just so appreciate, like, how you've laid all of this out for us.
For my listeners who are like, oh my gosh, I need more Rachel in my life. I need to read her book. I want to know everything this woman knows about all of this. Where can they get in touch?
RACHEL: Best way is rachelshaw.com, super easy. And you know, I love what you do, and I'm so excited for the work that you're doing. It's important. We need to fight for our rights and we need to know what our options are. And it makes workplaces so much better when employees know what their rights are as well. So we got to manage up. We got to make sure that our workforces are doing what they need to do to protect us because we're their best assets.
EMILIE: Amazing. Rachel, thank you so much for being here.
RACHEL: Thank you, it's great to be here.
EMILIE: For more links to all the resources that Rachel and I just talked about, head to bossedup.org/episode 530. That's bossedup.org/episode 530. As always, I want to keep this conversation going after the episode in the Bossed Up Courage Community, on Facebook or in the Bossed Up LinkedIn Group. I want to hear from you. How are these topics around requesting accommodations, navigating the ADA and the PWFA as managers and leaders? How are these landing with you? What's going on in your workplace? Whether it's a big organization with a behemoth of a HR department or more of a small and scrappy DIY style startup, how is this showing up in your workplace?
I'm very interested to hear more about your experience with pregnancy or if you are thinking about becoming pregnant in the future. And as it relates to knowing your rights as a future parent or current parent. I mean, it's certainly top of mind for me as someone who is still on my breastfeeding journey, somewhat reluctantly at this point. 13 months postpartum. You know, knowing your rights in the workplace is a huge part of making sure that you get the accommodations that you need to be successful, to Rachel's point, to be a productive member of the team, right?
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Not because you're trying to get away with anything, but in fact because you're trying to keep working. And we should make workplaces work for everyone regardless of ability status at any point in our lives. Okay, let's keep the conversation going after the episode and in the meantime, as always, let's keep lifting as we climb.
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