New Federal Protections for Pregnant Employees and Employees Who Are Nursing
On December 29, 2022, President Biden signed into law the 2023 Consolidated Appropriations Act which includes two measures that expand the rights of pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
Pregnant Workers Fairness Act (PWFA)
Modeled after the Americans with Disabilities Act (ADA), the PWFA expands protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. While an employee may have a pregnancy-related condition that qualifies as a disability under the ADA, pregnancy itself is not considered a disability under the ADA. Under the PWFA, however, employers are now required to treat pregnancy and childbirth-related accommodations under the same framework as the ADA. Like the ADA, the PWFA requires employers to engage in an interactive process to determine the feasibility of reasonable workplace accommodation(s). Although time off may be determined to be an appropriate accommodation, an employer cannot require a pregnancy-related leave of absence without first looking at other potential accommodations as part of the interactive process. As with the ADA, the PWFA includes an undue hardship provision that could be used to justify denying a requested accommodation. However, the hardship threshold is high and difficult to meet, as it is with the ADA.
The PWFA also protects employees covered by the PWFA from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation. The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The PUMP Act expands workplace protections by requiring employers to provide lactating employees with reasonable time (which may be unpaid unless otherwise required by federal, state or local law) and a private space to express breast milk. The PUMP Act expands upon provisions in the Affordable Care Act of 2010 that required employers to provide accommodations to lactating employees who are non-exempt under the Fair Labor Standards Act (FLSA). The PUMP Act expands these rights to all lactating employees covered by the FLSA (both exempt and non-exempt) for one year from the birth of a child.
Employers with fewer than 50 employees can continue to rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a lawsuit.
What Should Employers Do in Response to these New Laws?
Companies will want to ensure their policies are up-to-date and that they are prepared to comply with both of these new laws. In particular, employers should consider the following:
- Educate the human resources team and managers on these new laws. Without training, managers in particular may unwittingly say or do something in the workplace that is inconsistent with the law or with the employer’s policies and practices.
- Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process can and should be similar to the employer’s process for handling reasonable accommodation requests under the ADA.
- Keep in mind that the federal PWFA and the PUMP Act do not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located.
- Finally, remember that the goals of these laws is for employers to find ways – creative if necessary – to support pregnant and lactating employees in the workplace. Employers should expect that both the Equal Employment Opportunity Commission and the Department of Labor will make enforcement of these new laws a priority.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding these new employment laws and any required changes to employer policies and practices. For all MEA Members, the Hotline is available to provide this assistance. For MEA Essential and Premier Members, a Member Legal Services attorney is available for additional consultation.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association