Two new federal laws expand the scope of existing protections for pregnant employees and nursing workers. Employers should carefully review existing accommodation and lactation policies and practices to ensure they are compliant with the new laws. Specifically, on December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act) as part of H.R. 2617, the Consolidated Appropriations Act, 2023. The PWFA goes into effect on June 27, 2023. The PUMP Act became effective immediately, with remedies becoming available in April 2023.
While these new laws do not replace the Americans with Disabilities Act, Title VII, the Family and Medical Leave Act, and state and local laws that may provide protections for pregnant and lactating employees, these new federal requirements apply to employers throughout the country and have an expanded coverage of qualifying employees with pregnancy and childbirth related limitations. Below is an overview of the PWFA and the PUMP Act requirements and key takeaways for employers to consider while navigating their compliance with these laws.
The PWFA requires private and public sector employers with at least 15 employees to provide reasonable accommodations to an employee's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.
The PWFA requires employers to engage in an interactive process with employees to evaluate reasonable accommodations. The PWFA's requirement for "reasonable accommodations" and "undue hardship" have the same meaning as in the Americans with Disabilities Act (ADA). However, unlike the ADA, the PWFA explicitly extends protections to "qualified employees" who cannot perform an essential function of their job if the inability to perform the function is for a "temporary period" and they can resume it in the "near future" and can be reasonably accommodated. The terms "near future" and "temporary period" are not defined by the PWFA, but as is noted below, the EEOC will be issuing regulations.
Not only is the definition of "qualifying employee" different than the ADA definition, but the definition of "known limitation" in the PWFA is more expansive and includes physical and mental limitations "related to, affected by, or arising out of pregnancy or childbirth or related medical conditions…whether or not such condition meets the definition of disability…specified in the Americans with Disabilities Act."
Furthermore, the law prohibits employers from:
- Denying a job or other employment opportunities to a qualified applicant or employee based on their need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfering with any individual's rights under the PWFA.
The law is not retroactive, meaning that a worker who needed an accommodation before June 27th would not be covered under the PWFA; however, they may be covered under another state or federal law, including applicable disability and leave laws. However, a worker who already received a reasonable accommodation under a different state or federal law may request a new accommodation under the PWFA after June 27.
The U.S. Equal Employment Opportunity Commission (EEOC) is required to issue regulations to enforce the PWFA, and will first issue a proposed version of the regulations for public comment. The PWFA also directs the EEOC to issue guidance within the next year giving examples of reasonable accommodations under the Act. The EEOC has not yet issued the proposed regulations or guidance.
The PWFA takes its "powers, remedies, and procedures" from Title VII, including requiring that employees exhaust their administrative remedies prior to filing suit. Accordingly, the EEOC will start accepting charges under the PWFA on June 27, 2023.
PUMP Act Basics
The PUMP Act amends the Fair Labor Standards Act (FLSA), and requires employers to provide: (1) reasonable break time for employees to express breast milk for one year after a child's birth; and (2) a place, other than a bathroom, that is shielded from view and free from intrusion in which the employee can express breast milk. An employer may not deny a covered employee a needed break to pump. The law does not specify a minimum frequency or duration of breaks, as this will likely vary depending on the needs of the employee and applicable state and local requirements.
While the Affordable Care Act of 2010 (ACA) amended the FLSA to provide these rights to non-exempt employees, the PUMP Act extends coverage to all employees, unless specifically excluded.
The PUMP Act does not provide a right to a paid break; however, the law makes clear that time spent expressing breast milk is considered "hours worked" if the employee is not relieved of all duties during the entirety of the break. If a non-exempt employee continues to work or is interrupted while they are pumping, then they must be paid for the entire break. Exempt employees must receive their full weekly salary regardless of any pumping breaks. The law also prohibits retaliation.
The PUMP Act does not apply to employers with fewer than 50 employees if compliance would cause an undue hardship. However, state and local laws may be applicable.
An employer who violates the PUMP Act will be liable for legal or equitable remedies under the FLSA. These remedies may include reinstatement, liquidated damages, compensatory damages, and punitive damages where appropriate.
Pregnancy and Lactation Protection History and Landscape
The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. Prior to the PWFA, federal courts have ruled that not providing reasonable accommodations for pregnant workers could be discriminatory only if the employer grants them for other workers. Relatedly, the ADA covers certain conditions related to pregnancy that qualify as a disability; however, many common pregnancy-related conditions may not be covered by the ADA (though may be covered by applicable state laws).
Many state and local laws offer pregnancy- and lactation-related protections, and some states already require employers to provide the reasonable accommodations contemplated by the PWFA and the PUMP Act. For example, Washington, Oregon, New York, and California each have state laws requiring reasonable accommodations for pregnancy-related conditions, and requiring reasonable rest breaks for expressing breastmilk.
While many employers may already accommodate pregnancy and pregnancy-related conditions, employers should carefully review their current policies and practices to ensure compliance with the PWFA, including the specific interactive process framework. This is especially true for multistate employers who now may have compliance requirements in additional jurisdictions.
Employers must also be mindful in navigating the accommodation process with employees, keeping in mind that the PWFA has a broad definition of "qualified employee" and protects employees who cannot perform an essential function of their job if the limitation is temporary and they can resume it in the "near future." Notably, the PWFA also does not allow for leave as an accommodation if another reasonable accommodation can be provided that would allow the employee to continue working without undue hardship to the employer.
Additionally, employers should review any lactation policies to ensure they cover both exempt and non-exempt employees, and provide sufficient flexibility to meet the unique needs of their lactating employees. Employers should also ensure they are prepared to offer their lactating employees a private space to pump.
Employers will also begin to see EEOC charges with PWFA claims, as the EEOC will start accepting charges under the PWFA on June 27, 2023. Given the more expansive definitions of "qualified employee" and "known limitation" employers should carefully navigate the pregnancy related accommodation landscape and should consult with legal counsel as needed.