Unpacking The Kyte Baby Termination.

I’ll be giving you my legal take, which is more strategy-oriented than my moral take (which would include a lot more swear words). I will also be discussing what went wrong, what’s next and how to protect yourself.?

I understand the outrage, but invite you all to direct it to advocate for better workplace protections. This likely would not have happened in a state like California, where there are almost no eligibility barriers to leave rights, and where this mother would have had paid leave.?

You need progressive state leadership to have workplace protections. So vote accordingly in your state.?

The entire internet is confusing accommodation rights and leave rights right now.

They are not the same, and let’s make sure we are not misrepresenting the state of legal rights while we speak about complex legal issues. A deep dive into your accommodation rights is really worth your time. We’ll be sharing some accommodations content in the next few weeks, so stay tuned

A mom requested to work remotely to care for her adopted preemie in the NICU. Kyte declined her request. It was a heartless decision, but legal, and common.?

Of course, course employers (especially baby companies) should do the right thing, but we can’t be surprised that companies will do what is legally allowed. The entire business model of companies existing is to protect their own interests. But we must also protect our interests.?

The internet assumed paid leave would solve this problem. Yes and no. It’s not that simple (employment law never is). She did not ask for leave, she asked for remote work (an accommodation). This is a different analysis and set of rights. Let’s focus on accommodations rights first.?

When parents ask for remote work, they are asking for accommodations (which is different than leave rights.) Accommodation requests are only protected when they are for your own restrictions or conditions, not your baby’s (because you're the one with the employment rights).

Employers have to grant accommodation requests for an employee’s OWN health condition, as long as it’s not an undue burden. Penalties for unjustified denials are high. This mom could have sued if she requested accommodations for her own stress and anxiety due to being in the NICU.?

Too often I see parents ask for accommodations FOR THEIR BABY, whether the baby is in the NICU, they don’t have childcare or their baby is not talking the bottle. Your baby has no rights, so this is a fast track to getting fired. Ethical? No. Legal? Yes.

Here’s what to do instead.?

Here is your script: “I’m requesting accommodations to protect my mental health. Remote work would allow me to do the essential functions of my job while protecting my health restrictions.” Birthing parents, reference your rights under PWFA. Non-birthing parents, under ADA.?

There’s a pending bill in California that would allow employees to request accommodations for family responsibilities. Under the proposed bill, it would be unlawful to deny accommodations to care for a child. A federal protection of this kind would prevent terminations like this.?

A few other rights that would help:

(1) leave extension rights for NICU parents, so they don’t have to save their leave for when they get home.

(2) removal of eligibility requirements of FMLA. The mom wasn’t eligible, which is probably why she didn’t ask for leave of absence.?

You can also ask for leave of absence as a form of accommodation (yes even paid, and even if you’re not eligible for FMLA).

(3) paid leave, yes, but that would only kick in after #1 and #2 are in effect. It would be useless to this mom unless she was eligible for the time off.?

Let’s channel our outrage caused by these injustices into advocacy, and let’s let it fuel our movement so we can get us even more committed, devoted and focused on protecting mothers and babies ????????

Learn more about protecting your rights at www.themamattorney.com

And join us @themamattorney and @chamberofmothers on Instagram where we are advocating for these protections on the federal level.