[co-author: Delores Chichi]

Modeled after the Americans with Disabilities Act (ADA) and enforced by the Equal Employment Opportunities Commission (EEOC), the Pregnant Workers Fairness Act (PWFA) was passed with bipartisan congressional support as a component of the 2023 omnibus spending bill and signed by President Joe Biden on Dec. 29, 2022. The PWFA expands and federalizes pregnant employees’ protections currently found in the Pregnancy Discrimination Act (PDA), which was a prior amendment to Title VII. The PWFA will take effect on June 27, 2023. Additionally, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was also signed into law on Dec. 29, 2022, and amends the Fair Labor Standards Act (FLSA). The PUMP Act requires employers to provide employees, including exempt employees, with reasonable break time to express breast milk. The PUMP Act also makes clear that such breaks for nonexempt employees should be paid unless the employee is completely relieved of their duties for the entirety of the break. While the PUMP Act has taken immediate effect, enforcement provisions will take effect on April 28, 2023.

PWFA: What changes?

Under the prior standard imposed by the PDA and interpreted by the Supreme Court in Young v. United Parcel Serv., Inc., accommodations for pregnant employees were available only for medical conditions related to pregnancy. When claiming failure to accommodate, it was the plaintiff’s burden to show that defendant accommodated others who were “similarly situated in their ability or inability to work.” In short, pregnancy, in and of itself, was not enough to trigger an accommodation under the PDA. To top it off, the standard set by Young was somewhat convoluted and had various interpretations throughout the courts.

The PWFA bridges the gap by codifying pregnant workers’ protections that were not explicitly included in the ADA or the PDA. The PWFA requires employers with 15 or more employees to provide reasonable accommodations for a known limitation related to pregnancy, childbirth or related medical conditions of qualified employees. Qualified employees include an employee or job applicant who can perform the essential functions of the position with or without reasonable accommodation. In requirements similar to those of the ADA, employers must engage in the interactive process when arriving at a reasonable accommodation. Employers cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided instead. Examples of reasonable accommodations may include permitting an individual to sit or stand more or less frequently than usual; reducing or revising schedules; allowing more frequent breaks; moving a work station closer to a restroom or a water source; providing assistance with physically demanding tasks; or arranging for light duty or a temporary transfer to a different position.

While employers are not required to provide an accommodation when undue hardship on the operation of the business will result, employers cannot deny employment opportunities to qualified employees or take adverse action against an employee where the denial or action is based on the need or request to make reasonable accommodations related to pregnancy, childbirth or related medical conditions. Remedies available under Title VII are also applicable to the PWFA, which includes a private right of action (after exhausting administrative remedies) that may result in an award of back pay, compensatory damages and attorneys’ fees.

For employers located in jurisdictions that are aligned with federal law, the PWFA is a change that explicitly provides for reasonable accommodations for qualified employees. Many states and localities over the years, however, have already enacted enhanced protections for pregnant employees, and this may not be much of a change, or a change at all, for employers in places such as New York City.

PUMP Act: What changes?

The PUMP Act is an expansion of the FLSA and requires employers to provide reasonable breaks to express breast milk to all employees, including salaried employees, and not just nonexempt workers, as was the case under the FLSA. The law also makes clear that such breaks should be considered “hours worked” by an employee and thus appropriately compensated unless the employee is completely relieved of their duties during the entirety of the break. Employers must provide a private place other than a bathroom for covered employees to express breast milk, and the space must be free from intrusion by the public and co-workers. These breaks should be allowed from the date the need arises and for up to one year after the child’s birth. Employers with fewer than 50 employees can seek an exception from compliance if doing so would impose undue hardship on the business. Similar to the PWFA, the PUMP Act allows a private right of action after the employee has exhausted their administrative remedies. For employers located in jurisdictions that allow for similar or greater protections for nursing employees, the PUMP Act may not have as much impact.

What now?

While the EEOC has been allotted two years to issue PWFA-specific regulations, including examples of reasonable accommodations, employers should act now, before the law takes effect. Employers should review and revise their policies to ensure that pregnancy, childbirth and related medical conditions can be considered limitations that employers must reasonably accommodate. Further, employers should train managers and human resources professionals to be aware of and sensitive to the changes imposed by the PWFA, especially the need to and when and how to engage in the interactive process with qualified employees.

Enforcement provisions provided under the PUMP Act will not take effect until April 28, 2023, but the law has immediate effect. Therefore, employers that have not already done so should ensure that an appropriate non-bathroom space for employees to express milk is accessible. Further, employers should ensure that nonexempt nursing employees are paid if they express breast milk during their paid breaks or if they are not completely relieved of their duties during the break period while expressing breast milk. Exempt employees should be paid their full salary regardless of whether they take breaks to express breast milk.

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