Expanded Protections for Pregnant and Nursing Employees Signed into Law

President Joe Biden signed into law on December 29, 2022 the Consolidated Appropriations Act of 2023, a $1.7 trillion omnibus spending bill.  The final Act included provisions from two pieces of legislation designed to expand the rights of pregnant and nursing employees: the Pregnant Workers Fairness Act ("PWFA") and the Providing Urgent Maternal Protections for Nursing Mothers Act ("PUMP Act").  Both laws are aimed at addressing gaps in existing federal laws that protect pregnant and nursing employees.  Employers should review their policies and be prepared to comply with both of these new laws, as explained below. 

Pregnant Workers Fairness Act

The PWFA requires employers with 15 or more employees to provide reasonable accommodations for otherwise qualified, pregnant employees and job applicants with known limitations relating to pregnancy, childbirth, or related medical conditions -- unless doing so would impose an undue hardship on the employer.  This legislation is significant because under the Americans with Disabilities Act ("ADA"), pregnancy alone is not considered a disability.

Modeled after the ADA, employers now have an affirmative duty under the PWFA to engage an interactive process to determine whether reasonable accommodations exist.  The PWFA specifically prohibits employers from requiring an employee to take paid or unpaid leave if another reasonable accommodation can be provided.  Accommodations might include increased access to water, increased bathroom breaks, or avoiding high-risk physical tasks such as lifting heavy objects.  Covered employers are also prohibited under the PWFA from denying employment to pregnant job applicants if the denial is based on the need to provide a reasonable accommodation for known limitations related to pregnancy, child birth, or related conditions.  Like the ADA, the PWFA prohibits retaliation and other adverse employment action against a qualified employee for requesting a reasonable accommodation for known limitations related to pregnancy, child birth, or related medical conditions. 

 Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act requires employers to provide all employees who are nursing with reasonable break time and private space to express breast milk, unless the employer is exempt from complying with its provisions.  The PUMP Act adds to existing protections under a 2010 amendment to the Fair Labor Standards Act ("FLSA"), which only requires covered employers to provide break time and private space to non-exempt employees under the FLSA.  Now under the PUMP Act, employers must provide these accommodations to employees regardless of their FLSA-exempt status.

Specifically, covered employers must provide qualified employees reasonable break times during the first year after a child is born so that they can express breast milk.  The private space cannot be a restroom,  and the space must be shielded from view and free from intrusion from coworkers and the public.  Importantly for employers, employees are required to notify their employer if they have reason to believe their employer is out of compliance with the PUMP Act.  Employers then have 10 days to come into compliance before the employee can bring legal claims under the PUMP Act against their employer.

As was the case with the 2010 FLSA amendment, the PUMP Act carves out several exemptions from coverage.  First, the PUMP Act only requires employers with 50 or more employees to provide the required accommodations.  Employers with less than 50 employees may be exempt from coverage so long as it can establish that compliance would create an undue hardship causing "significant difficulty or expense" when considering the employer's size, financial resources, nature, or structure.  The PUMP Act also exempts from coverage certain employers in the transportation industry.  For example, air carriers are not required to maintain compliance with the PUMP Act for crewmembers.  Rail carriers and certain motorcoach services are generally required to maintain compliance but may be exempt if compliance requires the employer to incur significant expense or results in unsafe conditions. 

What Does this Mean for Employers?

This new legislation expands the rights of pregnant and nursing employees.  The PWFA goes into effect 180 days from December 29, 2022, the date President Biden signed the Consolidated Appropriations Act of 2023 into law, while the break time and private space provisions of the PUMP Act immediately went into effect.  Employers should first determine whether they are covered by one or both of the new laws and then assess compliance.  This is also a good time to review written workplace policies, such as an employee handbook, and provide appropriate training on the new laws to appropriate supervisors and management personnel.  Employers are encouraged to periodically visit the Equal Employment Opportunity Commission's and the Department of Labor's websites as more guidance is forthcoming. 

If you have any questions or concerns regarding compliance with the PWFA or the PUMP Act, please contact the MacDonald, Illig, Jones & Britton LLP Labor & Employment team.


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