Pregnant and breastfeeding workers will soon have additional rights under two new federal laws, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (or PUMP) Act.
The PWFA—which applies to employers with 15 or more employees—requires that employers provide reasonable accommodations to qualified employees for a known limitation related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA goes into effect on June 27, 2023.
A “qualified employee” is defined to include an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of a job.
Although the new law leaves open what accommodations would be considered “reasonable” in the context of pregnancy, the Equal Employment Opportunity Commission (EEOC) has been tasked with issuing regulations within two years for guidance.
In a recently released Q&A document, the agency noted that the House Committee on Education and Labor issued a report on the PWFA with several examples of possible reasonable accommodations, such as 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, take leave or time off to recover from childbirth and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Pursuant to the PWFA, covered employers may not require an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer, or require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
The law also prohibits retaliation for reporting or opposing discrimination under the PWFA.
Employees must follow the enforcement procedures set forth in Title VII (beginning with a charge filed with the EEOC) and can receive the same remedies found in the statute—back pay, compensatory and punitive damages, front pay, attorney fees, and nonmonetary injunctive relief.
As for the PUMP Act, it amends the Fair Labor Standards Act (FLSA) to require that employers with 50 or more employees must provide nursing employees with reasonable break time and a place (other than a bathroom) that is shielded from view to express breast milk while at work. This right is available for up to one year after the child’s birth. The PUMP Act was passed on December 29, 2022, and became fully effective on April 28, 2023.
Nonexempt employees are generally not entitled to compensation during these breaks if no work is being performed, but the breaks will be considered “hours worked” subject to compensation if the employee is not completely relieved from duty for the entirety of each break.
Employees who believe their employer is out of compliance with the PUMP Act must notify their employer, who has ten days to achieve compliance before the employee can make a claim of liability.
If an employer fails to comply, remedies available under the FLSA are also available for the PUMP Act, including back and front pay, unpaid wages, reinstatement and liquidated damages.
To read the PWFA, click here.
To read the PUMP Act, click here.
Why it matters: Employers should ensure compliance with the new laws, which expand the rights of pregnant and breastfeeding workers and may require new workplace policies or changes to existing policies. President Joseph Biden signed both the PWFA and the PUMP Act into law on December 29, 2022, but the new laws have different effective dates: the PWFA takes effect on June 27, while remedies for the PUMP Act took effect April 28, 2023.
