As part of its $1.7 trillion end-of-year spending bill, Congress passed two laws that provide new rights and protections for pregnant workers and nursing mothers – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Summaries of each law are provided below.
Modeled after the Americans with Disabilities Act (ADA), the PWFA requires covered employers (those with 15 or more employees) to provide reasonable accommodations to employees and applicants affected by pregnancy, childbirth, or related medical conditions, so long as it does not impose an undue hardship. Previously, pregnancy had not been treated as a condition requiring accommodation under the ADA or other federal anti-discrimination law.
As with the ADA, a reasonable accommodation under the PWFA might include any number of changes to the workplace, like allowing more frequent restroom breaks or light duty work. Also like the ADA, employers will be required to engage in an interactive process when considering the need for an accommodation. Notably, the PWFA provides that an employer may not require employees to take leave (paid or unpaid) if another accommodation is available. The PWFA also prohibits discrimination based upon the need for an accommodation, or retaliation because an individual requested or used an accommodation.
The PWFA will take effect on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) is expected to issue regulations at some point in the next year.
The PUMP Act
The PUMP Act expands workplace protections for employees who need to express breast milk. The new law expands on 2010 amendments to the Fair Labor Standards Act (FLSA) that required covered employers to provide non-exempt, nursing workers with reasonable break time and a private space (not a restroom) to express breast milk. Under the new PUMP Act, these protections are now available to all workers and are expanded from one year to twoyears after a child’s birth. Unless required by other state or federal law, employers are not required to compensate non-exempt employees for lactation breaks. However, if a non-exempt employee is not completely relieved of all duties, these breaks will be considered compensable hours worked.
Before filing suit for a violation of the PUMP Act, an employee must provide their employer with notice of an alleged violation and a 10-day period to remedy it. Like the prior 2010 law, employers with less than 50 employees are exempt from these requirements if compliance would impose an undue hardship.
The PUMP Act’s expanded obligations for covered employers took effect on December 29, 2022. The DOL is expected to issue additional guidance for employer compliance in the next 60 days.
Employers should immediately take steps to ensure compliance with these new laws. These should include:
- Educating HR professionals and managers regarding the new obligations.
- Updating policies and forms, including those related to reasonable accommodations, to reflect these new protections.
- Updating training materials for supervisors and employees.
Please contact Mike Chesney (firstname.lastname@example.org) or any member of Frantz Ward’s Labor and Employment Practice Group with questions regarding compliance with these new laws.