An overview of the Pregnant Workers Fairness Act and how it intersects with the Americans with Disabilities Act, South Carolina’s Pregnancy Accommodations and Lactation Support Acts, and the Family Medical Leave Act

As noted in our blog post on the passage of the Pregnant Workers Fairness Act (PWFA), the Act takes effect in June 2023. In preparation for compliance with the Act, employers should consider how the PWFA interacts with other laws, including the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the lactation requirements of the recently passed PUMP Act, Affordable Care Act (ACA) or related state laws. South Carolina employers should consider the Pregnancy Accommodations Act and the Lactation Support Act in conjunction with compliance under the PWFA. It’s a lot for an employer to juggle so we’ve compiled this overview to break down what employers need to consider.

The PWFA, ADA and SC Pregnancy Accommodations Act all require an employer to consider how a pregnant employee may be accommodated before, during and after pregnancy.

Before and during pregnancy, employers have legal obligations to accommodate pregnant employees with any job modification or leave absent undue hardship. Employers are encouraged to consider how essential job functions might be modified or shared temporarily with others if they cannot be modified. The employer should balance the number of essential functions the pregnant employee cannot perform against those the employee can perform in considering whether the accommodations create an undue hardship, going further than the ADA would otherwise require as this is a temporary situation. As with the ADA, the PWFA requires employers to engage in an interactive process (simply a two-way conversation) with a pregnant employee to discuss any accommodation requests and explore what can or cannot be reasonably granted. The employer should provide an explanation as to why any requests cannot be granted. This interactive process aims to reach a workable solution that meets the needs of business operations and the employee.

Similarly, after childbirth, a new mother may require accommodations of additional leave beyond the required 12 weeks by the FMLA or job modification to return. Suppose the opposite is true, and the employee desires to return to work on a part-time or reduced schedule basis or with a job modification to accommodate her restrictions? In that situation, the employee is still entitled to job-protected intermittent leave for any reduced schedule leave and also to job modification absent undue hardship, or transfer to an alternative position. An employer cannot require the employee to take more leave than is necessary while on FMLA. Additionally, the PWFA and the ADA require an employer to thoroughly analyze how the accommodations might be granted and, if the employee's request cannot be granted due to undue hardship, engaging in the interactive process with the employee and articulating strong, tangible reasons based on facts as to why the accommodation creates an undue hardship.

Lactation rights pose concerns for nursing mothers and employers when the frequency and length of lactation needs impact the ability to perform job duties. Once again, employers are reminded that the accommodations are temporary - only for one year - and must be granted if at all possible. To that end, the PUMP Act already in effect requires employers to permit lactation breaks “every time” the mother needs one for reasonable amounts of time. Employers should comply with that request at this time while awaiting expected guidance from the Department of Labor (DOL). Because of the PUMP Act’s language, employers would be well advised to refrain from deciding that the frequency poses an undue hardship until after the employer grants the request every time the employee needs one for lactation. Employers should still be wary about denying any such request until the DOL guidance is issued, even if granting a break every time one is needed truly poses an undue hardship. Congress requested guidance from the DOL 60 days following the PUMP Act’s passage on December 29, 2022.

Finally, as a reminder, breaks that the company pays for other employees must be paid for nursing mothers for up to the same amount of time. If employers do not track break times or require employees to clock out for breaks, they should not require that of nursing mothers either.