Today, an employee shares joyous news and says, “I’m expecting and due in 20 weeks!” You respond with congratulations, but then start thinking about all the new pregnancy-related legal protections you must comply with. Look no further, here are some highlights on what to expect when your employee is expecting…and beyond.

The Highlights:

Federal

You likely already know the basics. You know that many employees can invoke the Family and Medical Leave Act (FMLA) for unpaid leave for pregnancy-related serious health conditions and to bond with their baby. You are also likely aware that the Americans with Disabilities Act (ADA) comes into play when pregnant employees face pregnancy-related impairments that satisfy the ADA’s definition of “disability.” Separately, you know that Title VII prohibits sex-based discrimination, where pregnancy or conditions stemming from pregnancy are governed under that umbrella. Finally, you know that the Pregnancy Discrimination Act (PDA), generally protects applicants and employees from adverse employment action because of pregnancy or related conditions. The PDA also prohibits harassment based on pregnancy and prohibits retaliation.

Here are some new developments on the federal level:

• The Pregnant Workers Fairness Act (PWFA) and Proposed Regulations
• The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

The PUMP Act, which went into effect on Dec. 29, 2022 impacts employers with 50 or more workers. The law updated the 2010 Breaktime for Nursing Mothers law. The PUMP Act requires that employers provide nursing employees, include teleworking nursing employees, a reasonable break time each time that the employee has need of a break to pump while lactating. This right is available for up to one year after the child’s birth. (Note that it is likely that an employee need not be the birthing parent to receive a lactation accommodation as parents may decide to induce lactation when adopting a newborn baby.) Additionally, The PUMP Act provides that time spent expressing milk is considered hours worked if the employee is not completely relieved from work or is interrupted during the entire pumping break.

Further, employers must provide a space that is private, shielded from view and the space itself cannot be a restroom stall or a toilet. The location must be functional as a space for expressing milk, but employers are not required to create permanent, dedicated spaces for nursing employees. If the space is not dedicated to the nursing employees’ use, it must be available when the employee needs it in order to meet the statutory requirement.

New York

Effective June 7, 2023, the Nursing Mothers in the Workplace Act also expanded the rights of nursing mothers. Here, an employer is required to provide reasonable unpaid break time or allow employees to use rest periods or meal breaks to express milk as often as the employee reasonably has need to. An employer must provide an employee at least 20 minutes for each unpaid break, but must allow more time if an employee needs it. An employee may also use their regular paid break time or meal time to pump breast milk, but there is no requirement to do so. An employee may choose to take these breaks right before or after their regularly scheduled paid break or meal periods. For example, an employee can take a 30-minute lunch break and then take a 20-minute break to pump breast milk directly after their lunch break, for a total of 50 minutes. The law allocates these protections for nursing employees for up to three years following childbirth.

The law provides detailed requirements for lactation rooms, which cannot be a bathroom or toilet stall. The designated lactation room must be: reasonably close to the work area, well lit, shielded from view, free from intrusions and furnished with a chair, a surface to work on, nearby access to running water, and an electric outlet if the workplace is supplied with electricity. Employers must provide access to refrigeration to store milk, if the workplace has access to refrigeration. Employers must provide the above within five days of the employee making the request for reasonable accommodation. Finally, employers are required to provide employees with the NYS Department of Labor's written policy on the rights of nursing mothers to express breast milk in the workplace both upon hire and annually thereafter, and to employees upon returning to work following the birth of a child.

What Next?

There is a lot to unpack here, so it is important to take baby steps. Let’s start with the basics: review and update your policies and forms; consistently apply these policies; and train your supervisors on the interactive process, reasonable accommodations and other protections under these laws. As always, we are here to help you deliver thoughtful and compliant responses to your employees.

*Special thanks to Summer Law Clerk Joseph Vogt for his assistance in the preparation of this memo. Joseph is not yet admitted to practice law.

[1] 42 U.S.C. 2000gg(4).

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