Key Takeaways:

• On December 29, 2022, President Biden signed two measures aimed at enhancing protections for pregnant workers and nursing parents in the workplace: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (PUMP Act).
• The PWFA expands protections for pregnant workers by creating a legal obligation for most employers to provide reasonable accommodations to pregnant workers similar to those provided to disabled workers under the Americans with Disabilities Act of 1990 (ADA).
• The PUMP Act amends the Fair Labor Standards Act to require employers with 50 or more employees to provide reasonable break time for all employees, including salaried employees, to express breast milk as needed.
• Employers should review their policies and procedures promptly to ensure compliance with both new laws but most immediately the PUMP Act, which went into effect upon President Biden’s signing on December 29, 2022. The PWFA will take effect in June 2023. 

On December 29, 2022, President Biden signed two bills into law aimed at enhancing protections for pregnant and nursing parents in the workplace: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (PUMP Act). Both laws were supported by business groups and worker advocates alike and received bipartisan support. The PUMP Act took effect immediately, while the PWFA will go into effect in June 2023.

The Pregnant Workers Fairness Act

The PWFA provides that employers with 15 or more employees must provide reasonable accommodations to allow pregnant workers to perform the essential functions of their positions. The PWFA adopts the definition of a “reasonable accommodation” in the ADA, i.e. an arrangement to accommodate the pregnant worker’s limitations that does not impact the essential functions of the job. Mirroring the requirements of the ADA, covered employers must engage in an interactive process with pregnant workers who request an accommodation. Employers must provide reasonable accommodations for the “known limitations” related to pregnancy, child birth, or “related medical conditions” unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.

Under the PWFA, it is an unlawful employment practice for an employer to fail to provide a reasonable accommodation to a pregnant worker. Additionally, the PWFA protects workers seeking a pregnancy accommodation from retaliation and prohibits employers from terminating an employee who seeks an accommodation for a pregnancy-related reason.

The U.S. Equal Employment Opportunity Commission (EEOC) will enforce the PWFA and has two years to issue guidance providing examples of what reasonable accommodations during pregnancy entail, as the PWFA itself does not provide such detail. For example, “pregnancy-related medical condition” is not defined in the PWFA, and “known limitation” is broadly defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions . . . whether or not such condition meets the definition of disability” in the ADA. Accordingly, until the EEOC issues its guidance or case law develops under the PWFA, questions will likely arise as to what constitutes a “known limitation” and/or a pregnancy “related medical condition” for the purposes of the PWFA.

While 30 states and the District of Columbia already have some kind of pregnancy accommodation law on the books, the PWFA enacts protections on the federal level. Even employers located in a state that has a pregnancy accommodation law in place will need to familiarize themselves and comply with the PWFA, as the PWFA may provide greater protections for employees than state law.

The PUMP Act

The PUMP Act amends the Fair Labor Standards Act to require employers with 50 or more employees to provide reasonable break time for all employees, including salaried employees, to express breast milk as needed. The PUMP Act further clarifies that such breaks need not be paid, unless the employee is still on the clock or “not completely relieved from duty” during those breaks. Employers must also provide a clean and private space for nursing parents to express milk separate and apart from restrooms.

Existing protections for nursing parents under federal law do not extend to employees exempt from overtime under the Fair Labor Standard Act. The PUMP Act expands these protections to millions more nursing parents who need time and space to pump breast milk at work. Still, the law exempts a number of large employers in the transportation industry from providing these protections. The PUMP Act has lesser requirements for rail and motor coach carriers—excluding them from having to make changes that would be a “significant expense”—and exempts air carriers from having to provide accommodations under the Act at all.

In light of the enactment of the PWFA and the PUMP Act, employers should review and update their policies and practices to ensure they comply with these laws. Most immediately, employers with 50 or more employees should review their policies and practices regarding break time and space for breastfeeding employees to express milk to comply with the PUMP Act. Further, to prepare for the June 2023 effective date of the PWFA, employers with 15 or more employees should establish policies and processes for pregnant workers and applicants to request pregnancy-related reasonable accommodations, and develop a procedure for reviewing and, if required, granting such accommodations.