Last December, Congress significantly expanded the protections afforded to pregnant workers by passing the highly anticipated Pregnant Workers Fairness Act (PWFA), as well as the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

As discussed by McAfee & Taft labor and employment attorney Paige Good in her article “New law to offer additional employment protections to pregnant workers, applicants,” the PWFA requires employers with more than 15 employees to provide reasonable accommodations to workers who experience medical conditions related to pregnancy and childbirth.  The PWFA, which was signed into law by President Biden, becomes effective June 27, 2023.

The PUMP Act, which takes effect April 28, 2023, expands the breastfeeding protections provided by the Affordable Care Act of 2010.  Employers should carefully note the following changes to ensure compliance with the new legislation.

PUMP Act to take full effect April 28, 2023

The PUMP Act, which applies to virtually all employers, makes two key changes to the protections established by the Affordable Care Act. First, it significantly expands employee coverage to include exempt employees as well as non-exempt workers. Previously, only non-exempt nursing mothers were covered. Second, it adopts all remedies available under the FLSA in the event of noncompliance. Employers have a few months to prepare for the PUMP Act’s coverage expansion—which takes effect April 28, 2023—but the expanded remedies took place immediately.

Under the PUMP Act, employers must provide all nursing mothers: (1) reasonable break time to express breast milk; and, (2) a private location, besides a bathroom, that is shielded from view and free from intrusion. Nursing mothers are covered by the PUMP Act for up to two years after childbirth. Employers with fewer than 50 employees are excused from coverage if compliance would impose an undue hardship on the employer’s business, and these break periods are considered unpaid unless the employee is not completely relieved of job duties during the lactation period.

The PUMP Act also contains a mandatory reporting provision that requires all covered employees to notify their employers if they believe the employer is non-compliant. Employers have 10 days from the date of notification to remedy the situation. An employer waives the 10-day notification period if the employee is terminated for making the request or opposing their employer’s refusal to gain compliance. Effective immediately, all FLSA remedies (e.g., unpaid wages, reinstatement, or liquidated damages) are available for violations of the PUMP Act.

Employer next steps

With the PUMP Act set to go into effect shortly, covered employers are encouraged to work closely with their labor and employment counsel to update their policies, procedures and facilities to ensure compliance with the new legislation before the April 28, 2023, deadline. As with all employment law obligations, employers are also encouraged to provide regular training to all supervisors, managers, and other leaders in the organization on the employer’s obligation to comply with the PUMP Act and how they need to communicate with Human Resources and/ or senior management if they receive requests, questions, or complaints.