On December 29, 2022, President Biden signed a $1.7 trillion omnibus spending bill that included a couple pieces of legislation for pregnant and nursing employees in the workplace: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).
The PWFA extends the same protections available under the Americans with Disabilities Act (“ADA”) and the Americans with Disabilities Amendments Act (“ADAAA”) to pregnant employees seeking workplace accommodations. The law defines an employer as one who has fifteen (15) or more employees and makes it unlawful for them to:
- Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such a covered entity;
- Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
- Deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;
- Require a qualified employee to take leave, paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or
- Take adverse action in the terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
The Equal Employment Opportunity Commission is charged with enforcing the law. The PFWA gives the EEOC the authority to issue definitive regulations interpreting the law and directs the EEOC to publish regulations within one (1) year of the law’s enactment. Further, after an aggrieved employee has exhausted their administrative remedies with the EEOC, they have a private right of action, much like under Title VII. The PWFA also provides the same remedies as employees would receive under Title VII, such as reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees. Further, the PWFA does not limit the ability of states and localities to pass laws with greater protection.
The PFWA is meant to fill gaps that were not addressed by the Pregnancy Discrimination Act of 1978 (“PDA”). The PDA prohibits employers from taking adverse employment actions because of pregnancy, childbirth, or related medical conditions but does not expressly require employers to provide reasonable accommodations to pregnant employees.
The PWFA takes effect on June 27, 2023.
The PUMP Act
While the Fair Labor Standards Act (“FLSA”) was initially amended in 2010 to provide protections for certain non-exempt nursing employees, the PUMP Act expands those protections to include those employees exempt from overtime under the FLSA who were previously excluded from the same protections. The PUMP Act amends the FLSA to require employers with fifty (50) or more employees to provide the following:
- A reasonable break time for an employee to express breast milk for the employee’s nursing child for one (1) year after the child’s birth each time the employee has a need to express milk.
- A place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
The PUMP Act itself does not require the breaks to be paid unless the employee is still on the clock, “not completely relieved from duty,” or if otherwise required by federal, state, or local law.
The PUMP Act has an exemption for small employers (i.e., those with less than fifty (50) employees). Small employers do not have to comply with the law “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” The PUMP Act also has exemptions for crewmembers of air carriers, train crews of rail carriers, and motorcoach services operators who are involved in the movement of a motorcoach.
The PUMP Act also requires that, before commencing an action against an employer, an aggrieved employee must notify the employer of the employer’s failure to provide a place to express milk and provide the employer with ten (10) days after notifying it to come into compliance with the law. This notification period is waived if the employee has been fired, the employee made a request for the break time or place or has opposed the employer’s conduct; or the employer has indicated it has no intention of providing a place to express milk to the employee.
Further, the PUMP Act expands the FLSA to clarify that some damages available under certain provisions under the FLSA are also available for violations of the PUMP Act, including the payment of unpaid wages, reinstatement, back and front pay, and liquidated damages. Moreover, the PUMP Act permits states and localities to pass laws with greater protections.
The PUMP Act amendments expanding workplace protections for employees with a need to express breast milk became effective December 29, 2022. The PUMP Act amendments related to the Act’s remedies take effect April 28, 2023.
What’s Next for Employers?
The enactment of the PWFA and PUMP Act follows the adoption of similar legislation at the state and local levels across the country, including in states like California, Colorado, Illinois, New York, and Washington. Employers should be mindful of these (potentially) new requirements and ensure their policies and practices are compliant.