New Federal Employment Protections for Pregnant and Nursing Employees
Director of Compliance
In late December 2022, the U.S. Congress passed and President Biden signed an omnibus government funding bill addressing multiple national concerns. Within this complicated bill are two acts affecting work-related rights for pregnant and breastfeeding employees: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). The PWFA and PUMP expand and clarify the rights of pregnant and nursing workers in the workplace.
The PWFA takes effect June 27, 2023, and applies to employers with 15 or more employees, with limited exceptions. It requires covered employers to provide reasonable accommodations to applicants and employees experiencing temporary limitations due to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the employer. Presently, federal law only obligates accommodations for pregnant workers if employers also give them to workers with injuries or medical conditions with similar limitations.
A reasonable accommodation is any change to the application process, job, or work environment that allows a qualified pregnant employee to perform the essential functions of a position and enjoy equal employment opportunities. Upon receiving an accommodation request from a pregnant worker, the PWFA requires employers to engage in an interactive process to determine what reasonable accommodations may be needed and whether the accommodation would cause undue hardship. The PWFA bars employers from requiring qualified pregnant employees to take leave (paid or unpaid) as an accommodation if another reasonable accommodation can be provided. Moreover, employees are not required to accept an accommodation not arrived at through the interactive process.
The PWFA also contains antidiscrimination and antiretaliation provisions, protecting employees and applicants from discrimination, retaliation, coercion, intimidation, threats, or interference with their rights under the PWFA. The new law also prohibits discrimination and retaliation against individuals who aid or encourage other workers in exercising their PWFA rights.
The PUMP Act
In 2010, Congress amended the Fair Labor Standards Act (FLSA) to require employers to provide “non-exempt” employees with time and a private space (other than a bathroom) to express breast milk each time they need to express milk for one year after their child is born. Employees exempt from overtime were not covered by this amendment. Effective December 29, 2022, however, the PUMP Act further expanded the FLSA by requiring employers to also provide exempt employees—such as nurses and teachers—with reasonable break time and a private location to pump breast milk.
Employers are not required to pay employees who take this break time to express milk unless otherwise required by federal, state, or municipal law. Nevertheless, this break time is considered hours worked if the employee is not entirely relieved from their duties during the totality of the break.
The PUMP Act exempts employees of employers with fewer than 50 employees if the small employer can show the Act’s requirements would impose an undue hardship on their business (i.e., a significant difficulty or expense). Additional exemptions from PUMP include air carrier crew members and rail carrier crew members and motorcoach service operators under certain conditions outlined in the Act.
Before proceeding with legal action for a violation of the PUMP Act, employees must provide an employer with notice of a failure to comply with the requirement to provide a private location to express breast milk and give the employer 10 days to remedy the failure. This notice period is waived, however, if the employee was terminated allegedly in retaliation for requesting their rights under the PUMP Act or for otherwise opposing an employer’s refusal to provide a private space. Noncompliance remedies include back pay, front pay, liquidated damages, employment, reinstatement, promotion, and attorney’s fees to be paid by the defendant employer.
What Does This Mean for Employers?
Although many employers already have policies in place regarding pregnant and nursing workers, employers should take the time to review and update their policies and practices to ensure compliance with these new laws. Also, since some states, counties, and cities have their own laws granting workplace protections to nursing and pregnant workers, employers may wish to consult legal counsel if they have questions regarding the entirety of their legal obligations to pregnant and nursing workers based on where they are located.
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