On December 29, 2022, Congress signed a $1.7 trillion bipartisan spending bill, which contains two noteworthy acts: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). The Acts provide greater protection for pregnant or breastfeeding workers. 

PREGNANT WORKERS FAIRNESS ACT

The purpose of the PWFA is “[t]o eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”

The PWFA expands the Americans with Disabilities Act (ADA) protections by defining “qualified individuals” as those who are temporarily unable to perform an essential function of their job due to pregnancy, childbirth, or a related condition.

The PWFA makes it an unlawful employment practice for an employer with 15 or more employees to do any of the following:

• Fail to make reasonable accommodations for employees related to pregnancy, childbirth, or a related medical condition absent an undue hardship.
• Require an employee seeking a pregnancy-related accommodation to accept an accommodation other than one arrived at through the interactive process.
• Deny employment opportunities to pregnant or recently pregnant employees based on the requirement to make reasonable accommodations.
• Require an employee seeking a pregnancy-related accommodation to take leave, paid or unpaid, if the employer can provide an alternative, reasonable accommodation that allows the employee to continue to work.
• Take adverse action against an employee on account of their request for, or use of, a reasonable accommodation.

PROVIDING URGENT MATERNAL PROTECTIONS FOR NURSING MOTHERS

Since 2010, the Fair Labor Standards Act (FLSA) has required employers to provide non-exempt, breastfeeding employees “reasonable break time” to express breast milk after the birth of their children.

The PUMP Act expands the FLSA protections by requiring covered employers to provide reasonable break time to all nursing employees, both exempt and non-exempt, and a private space, other than a bathroom, for breastfeeding employees to pump for up to one year after the birth of their child.

A “covered employer” is one with 50 or more employees or less than 50 employees that can provide an accommodation without an undue hardship. The PUMP Act does not apply however to air and rail carriers.

Although the PUMP Act does not define “reasonable break time,” guidance from the United States Department of Labor (DOL) says employers must provide breaks “as frequently as needed” by the nursing employee and that “the duration of each break will likely vary.”

Whether an employer has to compensate a nursing employee during a reasonable break time depends on whether the employer provides compensated breaks to employees for other purposes and whether the breastfeeding employee is completely relieved from duty during the break. For example, an employer that does not provide compensated break time to employees for other purposes and completely relieves the breastfeeding employee from duty during the break will not have to pay the breastfeeding employee during the break.

As the new year begins, employers should review their relevant practices and policies to ensure that they are in compliance with the PWFA and the PUMP Act. For employers implementing such policies for the first time, doing so not only demonstrates compliance with federal law, but also demonstrates support for the health of employees and their families.