Is Your Business Prepared for New Workplace Protections for Pregnant and Nursing Mothers?
Businesses with employees in states that currently lack robust laws related to pregnant or nursing employees should be aware of new legislation and ensure their policies are in compliance before changes are set to go into effect this spring and summer.
At the close of 2022, the 117th Congress passed two measures expanding protections for pregnant and nursing employees. Both measures, the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), were passed as amendments to the 2023 Consolidated Appropriations Act, which was signed into law by President Biden on Dec. 29, 2022.
The PWFA goes into effect on June 27, 2023, and applies to employers with 15 or more employees. The PWFA prohibits employment practices that discriminate against providing reasonable accommodations to qualified employees affected by pregnancy, childbirth, or related medical conditions. The new law only applies to accommodations and does not replace more protective state or local laws.
The enforcing agency of the PWFA, the Equal Employment Opportunity Commission (the “EEOC”), has stated that it will begin accepting charges under the PWFA on June 27, 2023, for actions that have occurred on or after that date. The EEOC has also been tasked with issuing regulations to carry out the PWFA within two years of its enactment, which will “provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.”
Under prior federal law regarding providing accommodations for pregnant employees—which in practice has flowed almost exclusively from the Americans with Disabilities Act (the “ADA”)—employers were only required to provide accommodations for pregnant workers who were deemed “disabled” by their pregnancy. Under the PWFA, employers must make reasonable accommodations “to the known limitations related to pregnancy, childbirth, or related medical conditions,” regardless of disability status, so long as the accommodation does not “impose undue hardship on the operation of the [employer’s] business.”
The PWFA also specifies that leave—paid or unpaid—may only be used as a last resort (or if the employee chooses leave): an employer may not “require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided…”
The last significant change coming with the new law relates to the performance of essential functions of a job. Under the PWFA, a pregnant employee must be provided with reasonable accommodations even if they cannot perform the essential functions of the job, so long as “any inability to perform an essential function is for a temporary period” or if “the essential function could be performed in the near future.”
Relief and Remedies
The PWFA grants the EEOC and the Attorney General the ability to investigate and enforce the law in a similar manner to Title VII of the Civil Rights Act, and empowers employees to pursue private rights of action against their employers once all administrative relief has been exhausted. The relief available to employees under the PWFA mirrors that available under Title VII; meaning employees may obtain reinstatement, back pay, front pay, compensatory damages, punitive damages, and reasonable attorney fees and costs.
The PUMP Act
The PUMP Act, which amends the Fair Labor Standards Act (“FLSA”) to expand protections to nursing mothers who need to express milk while at work, technically took effect on Dec. 29, 2022. But the expanded access provisions of the law do not go into effect until April 28, 2023, meaning employees may not seek relief under the new law (such as reinstatement, promotion, lost wages, compensatory damages, make-whole relief, and punitive damages for violations of the Act) until that time. Other than a small number of exemptions for certain employers like airlines and railroads, the PUMP Act applies to all employees including remote or teleworking employees. Businesses that employ fewer than 50 employees may also be exempt if compliance would impose “an undue hardship.”
The PUMP Act expands employer obligations under the FLSA to provide a nursing employee with “a reasonable break time” to express breast milk for the employee’s nursing child. These obligations carry on for one year after the child’s birth and apply “each time such employee has need to express the milk.” Nursing employees who use break time to express breast milk must either be completely relieved from duty for the entire break time or be paid for the break time. If the employee is exempt, she still must be paid her full weekly salary as required by federal, state, and local law, regardless of taking breaks to express breast milk.
The PUMP Act requires that employers provide nursing employees with “a place, other than a bathroom, that is shielded from view and free from intrusion” for the nursing employee to express breast milk. This applies even if the employee is teleworking from home—such employees must be free from observation by any employer-provided or required video or tracking system.
If you need any assistance interpreting or complying with either the PWFA or the PUMP Act, please contact Payne & Fears LLP.