Key Takeaways:

• The PWFA creates a new avenue for pregnant employees to request reasonable accommodations not previously provided under the ADA, PDA or FMLA.

• The PUMP Act creates new protections under the FLSA for employees who require breaks and private space to express breast milk for up to one year after their child’s birth.

• These laws apply  to covered private and public employers with some exceptions, depending upon the number of employees the entity employs.

On June 27, 2023, two new federal laws related to pregnant workers were enacted to guarantee these workers reasonable accommodations that may not have been available under the Americans with Disabilities Act. These laws apply to private and public sector employers with at least 15 employees, as well as Congress, Federal agencies, employment agencies, and labor organizations.

The Pregnant Workers Fairness Act creates a private cause of action against any employers who undertake adverse actions against qualified workers seeking reasonable accommodations or deny employment opportunities based upon the premise of having to provide reasonable accommodations. See “What You Should Know About the Pregnant Workers Fairness Act,” U.S. Equal Employment Opportunity Commission. Employees can now file charges of discrimination under this new cause of action, as well as the Americans with Disabilities Act or Pregnancy Discrimination Act, depending on the nature of the discriminatory act by covered employers. Family Medical Leave Act retaliation or interference causes of action will also be available to these employees from covered entities. Id.

The PWFA requires that reasonable accommodations be provided to qualified workers who cannot perform the essential functions of their jobs if they meet the following standard: “employees who cannot perform the essential functions of their job, so long as the following conditions are met: (a) the inability to perform the essential function is temporary; (b) it could be performed in the near future; and (c) the inability to perform the essential function can be reasonably accommodated.” Id. Employers are still required to engage in the interactive process required under the ADA. Id.

This law differs from the Pregnancy Discrimination Act, as that law required that reasonable accommodations be given to workers whose pregnancy/childbirth conditions were considered disabilities and rendered them a qualified worker under the ADA or when the employer was already providing reasonable accommodations for similarly situated, non-pregnant employees. Now, a new class of employees qualify for reasonable accommodations. This can be an adjustment or modification to the employee’s work environment or job that will allow the employee with a disability an equal opportunity to perform their work duties. The Equal Employment Opportunity Commission (EEOC) is responsible for providing regulations regarding the reasonable accommodations, and it has provided a few examples at this point in time, which include the ability to sit or drink water, receive closer parking, have flexible hours, receive appropriately sized uniforms or safety apparel, or receiving additional break time, to name a few. See “What You Should Know About the Pregnant Workers Fairness Act,” EEOC.

The Providing Urgent Maternal Protections for Nursing Mothers Act, which amends the Fair Labor Standards Act (FLSA), requires covered employers to allow employees valid break time in order to express breast milk when needed, as well as a private area, other than the bathroom, with shielded view while they pump. “Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work,” Department of Labor, Revised January 2023. This Act extends coverage available under the Affordable Care Act (ACA), whether the employee is exempt or non-exempt under the FLSA, for at least one year after the child’s birth. Some employees, including those of airlines, railroads, and motor coach companies, are exempt from these protections, though they may still be entitled to a break or space under state or local laws. If an employer has less than 50 employees, they will not be required to institute these accommodations if it would create an undue burden on the business.

Employers should review their company handbooks, as well as current policies and procedures regarding requests for reasonable accommodations and paid break time, in order to ensure they are fully complying with these new regulations.