By: Lucero Tennis Kieffer and Chad J. Sullivan
As part of the omnibus spending bill for FY 2023, Congress passed new protections for pregnant employees and nursing mothers in the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). On December 29, 2022, President Biden signed the bills into law.
Pregnant Workers Fairness Act
The PWFA was enacted to address the gap between the Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) by expanding federal protections for pregnant employees. Beginning June 27, 2023, the PWFA makes it unlawful to:
- Refuse to make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical condition unless such entity can demonstrate undue hardship;
- Require a qualified employee affected by pregnancy, childbirth, or a related medical condition to accept an accommodation other than one arrived at through the interactive process;
- Deny employment opportunities to a qualified employee based on the need of the employer to make reasonable accommodations;
- Require a qualified employee to take leave, whether paid or unpaid, if an alternative reasonable accommodation can be provided;
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation;
- Retaliate against employees for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding; or
- Coerce, intimidate, threaten, or interfere with an individual in the exercise of his/her rights granted by the PWFA.
Modeled after the ADA, the PWFA incorporates many similar terms. For example, “reasonable accommodation” and “undue hardship” have the same meaning as under the ADA and covered employers include employers with at least fifteen (15) employees. However, there are some differences between the two laws. For example, under the PWFA, covered employers will be required to provide reasonable accommodations for qualified employees and job applicants with temporary physical or mental limitations related to “pregnancy, childbirth, or related medical condition,” provided it does not impose an undue hardship on the employer. Also, contrary to the ADA, employers may have to temporarily relieve pregnant employees of their essential job duties under the PWFA.
The PWFA also directs the EEOC to issue regulations within one year of passage. Said regulations will provide examples of “reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.” The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations (e.g., the ability to sit or drink water, receive closer parking, have flexible hours, receive appropriately sized uniforms and safety apparel, receive additional break time to use the bathroom, eat, and rest, and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy).
PUMP Act
Since 2010, the Fair Labor Standards Act (FLSA) has required certain employers to provide non-exempt employees accommodations to express milk. The PUMP Act expands and amends existing employer obligations under the FLSA by providing that all lactating employees covered by the FLSA (i.e., hourly and salaried) are entitled to reasonable break time and private space—“other than a bathroom, that is shielded from view and free from intrusion”—to express milk for one year following the birth of a child. “Small employers” with fewer than 50 employees who can establish an undue hardship are exempt from the PUMP Act.
The PUMP Act expressly states that employees are not entitled to compensation for time spent during a lactation break, unless required to be paid under state or federal. It also clarifies that break time is “considered hours worked if the employee is not completely relieved from duty during the entirety of such break.”
Before an employee may seek an action for violation of the PUMP Act, employees must notify their employer of the alleged failure. The employer then has 10 days to remedy the situation. However, the notification period is waived if an employee is terminated for making a request or opposing an employer’s refusal to provide a place to express milk or if employer indicated that it will not provide a private place for the employee to do so. The remedies available to employees under the FLSA (e.g., unpaid wages, reinstatement, and liquidated damages) are available for violations of the PUMP Act.
Unlike the PWFA, the PUMP Act became effective immediately upon passage (December 29, 2022). However, the enforcement provisions included a 120-day delay, making the effective date for those provisions April 28, 2023.
What Should Employers Do?
- Review state and local law to determine if your state has enacted its own protections for pregnant or nursing employees because both the PWFA and the PUMP Act permits states/localities to pass their own laws with greater protections.
- Review and update employee handbooks and policies (e.g., reasonable accommodations and/or lactating and break policies).
- If applicable, engage in the interactive process, similar to the ADA process.
- Provide education and training on the PWFA, PUMP Act, and similar state and local law for recruiters, managers, and supervisors.