Legal Updates

Federal Protections Expanded For Pregnant And Nursing Workers

As part of the omnibus spending bill signed into law by President Biden on December 29, 2022, two new federal employment laws were enacted - the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”). Both the PWFA and PUMP Act provide expanded protections for pregnant and nursing workers under federal law, as outlined below.

Many states, including Massachusetts, already have similar or more protective laws in place for pregnant and nursing workers. Employers must now be mindful of their obligations under applicable federal and state law and ensure that their policies and practices are compliant.

The PWFA

The PWFA, which goes into effect on June 27, 2023, requires “covered employers” to provide reasonable accommodations to otherwise-qualified employees and applicants for known limitations (e.g., physical or mental conditions) related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless a proposed accommodation would cause the employer undue hardship. The term “Covered employers” encompasses private and public sector employers that employ at least fifteen (15) employees.

Similar to the American with Disabilities Act (“ADA”), an employer is required to engage in an interactive process with an employee or applicant to determine the appropriate accommodation for the individual that will not impose an undue burden on the employer’s business operations. However, while the ADA requires an employee to be able to perform the essential functions of his or her job with or without an accommodation to be considered a “qualified employee,” the PWFA considers an employee or applicant “qualified” even if the individual cannot perform all of the essential functions of the position, as long as: (i) any inability to perform an essential function is for a temporary period; (ii) the essential function could be performed in the near future; and (iii) the inability to perform the essential function can be reasonably accommodated.

Examples of reasonable accommodations under the PWFA include permitting an employee or applicant 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; take time off to recover from childbirth; and/or be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

The PWFA explicitly states that employers are prohibited from: (i) requiring a qualified employee or applicant to accept an accommodation other than one agreed to through the interactive process; (ii) denying a job or other employment opportunities to a qualified employee or applicant based on the individual’s need for a reasonable accommodation; (iii) requiring an employee to take leave if another reasonable accommodation is available that would allow the employee to keep working; (iv) retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or for participating in a PWFA proceeding; or (v) interfering with any individual’s rights under the PWFA.

Finally, the PWFA directs the Equal Employment Opportunity Commission to issue regulations providing additional guidance and examples of reasonable accommodations within two years of the enactment of the PWFA.

PUMP Act

The PUMP Act, which went into effect on December 29, 2022, amends the Fair Labor Standards Act (“FLSA”) by expanding employee protections under the Break Time for Nursing Mothers Act (the “break time law”), which was passed in 2010. The break time law requires employers to provide employees with reasonable break time to express breastmilk during the workday for one year following the birth of their child. Employers are required to provide employees with a private location, other than a bathroom, that is shielded from view and free from intrusion, for them to express breast milk as needed.

Although these protections were already in place for non-exempt employees, the PUMP Act extends these protections to include other categories of employees, regardless of FLSA exemption status, including, but not limited to, teachers, nurses, and agricultural workers. Additionally, the PUMP Act clarifies that an employer is required to pay an employee for time spent expressing breast milk if the employee is not relieved of all work duties during this time.

Most significantly for employers, the PUMP Act creates enforcement mechanisms that were not included in the break time law:
 

• If an employer violates the break time requirement, indicates that it has no intention of providing a private space to express breast milk, or takes adverse action against an employee for requesting such break time or space, an employee denied such rights may file a lawsuit immediately.
• If an employer has not provided adequate space to express breast milk, the employee is required to notify the employer, which then has ten (10) days to comply with the request or will be deemed in violation of the law.

These enforcement provisions do not go into effect until April 28, 2023, unlike the rest of the PUMP Act, which is now in effect.

While all employers are covered by the FLSA, employers with fewer than 50 employees are not subject to the PUMP Act’s nursing break time requirement, if they can demonstrate that compliance with the provision would impose an undue hardship upon their business. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for the employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

Finally, the PUMP Act directs the U.S. Department of Labor (“DOL”) to issue guidance on employer compliance with the expanded requirements. Accordingly, the DOL has updated its website to include such guidance, as well as fact sheets and other resources for employers.

Next Steps For Employers

Although many employers may already have accommodation and break policies for pregnant or nursing workers, employers should confer with their employment counsel to ensure that their policies and practices are in compliance with these new federal statutes, as well as any applicable state laws.

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