Within the past year, the rights of pregnant workers have considerably increased within the workplace. The expansion started with the Pregnant Workers Fairness Act (“PWFA”), which President Biden signed into law in late 2022. The PWFA took effect in June 2023. The PWFA requires that employers provide reasonable accommodations to pregnant employees. Additionally, the Consolidated Appropriations Act of 2023, signed in December of 2022, included the Providing Urgent Maternal Protections for Nursing Mothers Act, also known as the “PUMP” Act (“PUMP Act”). The PUMP Act amends the Fair Labor Standards Act (“FLSA”) and ensures a private space for an employee to express breast milk when necessary. Below is a summary of what employers should know under each law.
The Pregnant Workers Fairness Act
The PWFA requires employers to provide reasonable accommodations to a pregnant employee’s known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer undue hardship. Generally, undue hardship requires the employer to show significant difficulty or expense and is determined on a case-by-case basis. The Equal Employment Opportunity Commission (“EEOC”), which enforces the PWFA, defines reasonable accommodations as “changes to the work environment or the way things are usually done at work.” The PWFA applies only to reasonable accommodations. The EEOC highlighted examples of reasonable accommodations, which include:
- ability to sit;
- ability to drink water;
- access to closer parking;
- flexibility in work hours;
- appropriately sized uniforms and safety apparel;
- additional break time allowances for bathroom use, eating, or resting;
- use of leave to recover from childbirth; and
- excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
With that being said, employers should be aware that the PWFA does not replace federal, local, or state laws that are more protective of workers with limitations due to pregnancy, childbirth, or related medical conditions.
The PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
The PWFA does not apply to pregnancy itself, but rather, the “known limitations related to pregnancy, childbirth, or related medical conditions.” The PWFA does not specify the types of conditions that will be considered a “known limitation” other than noting that it must be a “physical or mental condition” related to “pregnancy, childbirth, or related conditions” that the employee “has communicated to the employer.” The PWFA explicitly does not tie “known limitations” to the definition of a “disability” under the ADA. As such, the term applies to a broader range of conditions than those covered under the ADA.
Employees can enforce their rights under the PWFA by filing a complaint with the EEOC, as employees must exhaust all administrative remedies prior to filing suit in federal court.
The Providing Urgent Maternal Protections for Nursing Mothers Act
The PUMP Act closes some of the loopholes in the FLSA’s 2010 Break Time for Nursing Mothers law. The original law contained a gap that left 1 in 4 women of childbearing age without protection under the law. The PUMP Act closes that gap and expands the requirement that employers provide nursing employees reasonable break times to express breast milk during the work day and a private place to pump at work. Employers are required to provide a functional location for pumping breast milk that is shielded from view, free from intrusion, and available as needed. The Department of Labor (“DOL”), which enforces the PUMP Act, asserts that a functional location includes a place to sit, a flat surface for the pump other than the floor, and an electrical outlet. Employers should note that the space need not be specifically designated as a pumping space; it must only be private and shielded from view. An empty office or storage room will suffice. However, a restroom may not be designated as a pumping space. This right is available for up to one year after the birth of the employee’s child.
The PUMP Act also clarifies that pumping time counts as time worked when calculating minimum wage and overtime if an employee has not been fully relieved from all work duties during the pumping break period.
Under the original law, there was no right for an employee to receive monetary compensation in the event an employer violated the law. The PUMP Act allows for a privacy right of action. Employees can enforce their rights under the PUMP Act by either (1) filing a lawsuit to enforce a specific requirement of the PUMP Act or (2) by filing a complaint with the DOL’s Wage and Hour Division. Employees should be aware that they must give a 10-day notice to their employer stating noncompliance with the PUMP Act before filing a lawsuit or complaint. In which case, the employer has 10 days to conform to the provisions of the Act. Employers should note that this safe harbor provision is not required if they have taken adverse action against the employee for a break time request.
Unlike the PWFA, which only covers employers with at least 15 employees, the PUMP Act protects all employees so long as the employer is governed by the FLSA. Employers may be exempt from the PUMP Act if (1) they have fewer than 50 employees and an accommodation would cause the employer undue hardship, or (2) the employee requesting accommodation is a crewmember of an air carrier, as private places to express breast milk on an air carrier is difficult to create.
Key Takeaways
- Employers should be maintaining regular communication with employees to stay up to date on necessary accommodations, including specific break time needs.
- Employers should review and update their workplace policies to ensure compliance with the PWFA and the PUMP Act. This includes adding accommodation language.
- Employers should train HR supervisors and employees to understand the requirements of both the PWFA and the PUMP Act. This includes training on how to engage in the interactive process with respect to determining reasonable accommodations under the PWFA.
- Employers should ensure their facilities are PUMP Act compliant.
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