New Protections for Pregnant and Nursing Workers

On December 29, 2022, as part of the Fiscal Year 2023 Omnibus Spending Bill, President Biden signed into law two pieces of legislation that will benefit pregnant and nursing mothers. These two pieces of legislation, known as the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Material Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act), expand protections for pregnant and nursing employees in important ways and seek to provide more uniformity in this area of the law.

The Pregnant Workers Fairness Act expands concepts from the Americans with Disabilities Act, such as the obligation to provide reasonable accommodations, to situations involving pregnancy, childbirth, and related medical conditions. Previously, employers were required to make accommodations for pregnant employees only to the extent that comparable accommodations were made available to employees with similar limitations in their ability to work. With the lack of pregnancy-comparable conditions, this legal reality led to inconsistent interpretations of the law. It is estimated that this inconsistency led to the dismissal of as many as two-thirds of lawsuits involving pregnancy-related accommodations.

The PWFA now mandates that employers provide reasonable accommodations and other protections to pregnant workers even in the absence of an underlying disability. Employers must extend these protections to both employees and job applicants – so long as the individual is able, or in the near future will be able, to perform the essential functions of the employment position. In sum, the PWFA requires that employers with 15 or more employees provide the following protections to pregnant employees and job applicants with physical or mental conditions affected by or arising out of pregnancy, childbirth, or related medical conditions:

  • Reasonable accommodations must be provided for employees and applicants who disclose physical or mental conditions that are affected by or that arise out of pregnancy, childbirth, or related medical conditions. Like the ADA, the PWFA provides an exception for employers that can demonstrate that accommodations would result in undue hardship to the business.
  • The employer and employee should determine appropriate accommodations through the same interactive process that is the foundation of the ADA. This process involves cooperation between the employee and the employer in order to fully understand that individual’s condition and the limitations that affect his or her ability to perform the essential job duties.
  • Employers cannot deny employment opportunities to a pregnant worker due to a need for a reasonable accommodation.
  • Employers must offer a reasonable accommodation other than taking a leave of absence, if one exists.
  • Pregnant workers must enjoy the same terms, conditions, and privileges of employment that such individuals would have experienced had they not needed, or even requested, a reasonable accommodation.
  • Employers may not retaliate against an individual in the exercise or enjoyment of rights under the PWFA or discriminate against an employee for opposing any act rendered illegal under it.

The PWFA provides many of the same remedies that are available to employees under Title VII of the Civil Rights Act, including injunctive and other equitable relief, compensatory and punitive damages, and attorneys’ fees. The PWFA goes into effect on June 27, 2023.

The PUMP for Nursing Mothers Act amends the Fair Labor Standards Act, expanding upon existing rules that require employers to designate time and space for nursing employees to express breastmilk during the work day. When the Affordable Care Act was enacted in 2010, it included amendments to the Fair Labor Standards Act that required employers to provide hourly employees reasonable break time to express breast milk in a private location for one year after childbirth. The PUMP for Nursing Mothers Act replaces the prior FLSA amendments and expands the law in the following ways:

  • Employers must provide reasonable break time and a private location for all lactating employees, whether hourly or salaried.
  • Break time does not count as hours workers unless the employee is not completely relied of duty during the break.
  • The PUMP for Nursing Mothers Act adds a requirement for employees seeking to recover for the employer’s failure to provide the appropriate place for nursing. Under the Act, the employee must provide notice to the employer and ten days to cure before commencing action. This notice requirement of course does not apply to an employee who was terminated for requesting an employer’s compliance or when an employer has indicated that it will not comply.
  • Finally, the PUMP for Nursing Mothers Act expands existing remedies for nursing employees by making available all remedies under the FLSA, including unpaid wages, reinstatement, and liquidated damages.

The PUMP for Nursing Mothers Act’s provisions regarding access took effect upon enactment on December 29, 2022, but the remedies provisions will take effect on April 28, 2023.

Employers should take action to ensure compliance with the PWFA and the PUMP for Nursing Mothers Act and should review their policies that govern the reasonable accommodations that they provide in light of the expanded protections provided by these laws.

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