Congress Enacts New Employment Protections for Pregnant Employees and Nursing Mothers

The US Congress passed the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) on December 23, 2022, as part of the omnibus spending bill for FY2023. President Joseph Biden signed the bills into law on December 29. The PWFA will take effect 180 days after the bill is signed. The PUMP Act’s expanded coverage provisions take effect 120 days after signature. The expanded remedies apply immediately.

The PWFA and PUMP Act expand employment protections for individuals who are pregnant, have related medical conditions, or are nursing. The PWFA requires that employers offer reasonable accommodations to qualified employees when needed due to pregnancy, childbirth, or related medical conditions.

 The PUMP Act amends and expands the Break Time for Nursing Mothers Act, which became law in 2010, by providing additional employees, including those who are salaried, the right to receive break time and a private place to pump at work. The PUMP Act also provides covered employees with additional remedies if employers fail to provide accommodation or reasonable breaks.

PREGNANT WORKERS FAIRNESS ACT

The PWFA was introduced to ensure that pregnant employees were entitled to reasonable accommodations, even in the absence of an underlying medical condition, after courts ruled that such accommodations were not required under the Pregnancy Discrimination Act (PDA). The PWFA incorporates many of the reasonable accommodation concepts that are used in the Americans with Disabilities Act (ADA), but there are important differences between the two laws. Similar legislation has been enacted in at least 30 states and five localities to date.

The PWFA makes it an unlawful employment practice for an employer with 15 or more employees to:

• Not make reasonable accommodations to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical condition unless such entity can demonstrate that the accommodation would impose an undue hardship.
• Require a qualified employee affected by pregnancy, childbirth, or a related medical condition to accept an accommodation other than one arrived at through the interactive process.
• Deny employment opportunities to a qualified employee based on the need of the covered employer to make reasonable accommodations.
• Require a qualified employee to take leave, whether paid or unpaid, if an alternative reasonable accommodation that allows the employee to continue to work can be provided.
• Take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation.
• Retaliate against employees who have opposed any act or practice made unlawful by the PWFA, or coerce, intimidate, threaten, or interfere with an individual in the exercise of rights granted by the PWFA.

The PWFA defines a “qualified employee” as an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of a job. Unlike the ADA, the PWFA expressly provides that an individual may still be “qualified” if they are temporarily unable to perform an essential function due to pregnancy, childbirth, or a related condition. Employers may have to temporarily relieve pregnant employees of essential job duties if needed. The terms “reasonable accommodation” and “undue hardship” have the same meaning as used in the ADA.

The enforcement remedies and procedures available under Title VII also apply to the PWFA. Individuals who believe their rights were violated can file charges with the US Equal Employment Opportunity Commission (EEOC) and/or state and local fair employment practices agencies for investigation. The PWFA gives the EEOC the authority to issue definitive regulations interpreting the law and directs the EEOC to publish regulations within two years of passage. The PWFA does not limit the ability of states and localities to pass laws with greater protections.

The application of the PWFA to religious employers was one of the issues that delayed its consideration in the US Senate. The Senate added a provision adopting the religious organization exemption in Title VII to try to address concerns that the law would require religious organizations to grant paid leave to employees for abortion or other reproductive health services that may violate the tenets of those religions.

PUMP ACT

Since 2010, federal law has required certain employers to provide non-exempt (i.e., hourly) employees accommodations to express milk. The PUMP Act expands and amends existing federal law by providing that all lactating employees covered by the Fair Labor Standards Act (FLSA), both hourly and salaried, are entitled to reasonable break time and a private location,  other than a bathroom, that is shielded from view and free from intrusion to express milk for two years following the birth of a child. Employers with fewer than 50 employees may be exempt from complying if they can establish that doing so would impose an undue hardship. Additionally, there is an exemption for certain employees in the airline, railroad, and motorcoach industries.

The PUMP Act states that unless required to be paid for the time under state or federal law, employees are not entitled to compensation for time spent during a lactation break. It also clarifies that the break time is considered hours worked if employees are not completely relieved from duty during the entirety of the lactation break.

The PUMP Act also changes the prior law by requiring covered employees to notify their employers if they believe the employer is not in compliance with the PUMP Act and to give the employer 10 days to remedy the situation before an action for non-compliance can be commenced. This notification period is waived if the employee’s employment has been terminated for making the request or opposing an employer’s refusal to provide a place to express milk under the law, or if the employer indicated it will not provide a private place for the employee to do so. Additionally, the PUMP Act expands existing law by providing that the remedies available under the FLSA (e.g., unpaid wages, reinstatement, or liquidated damages) are available for violations of the PUMP Act.

Similar to the PWFA, the PUMP Act permits states and localities to pass laws with greater protections. The PUMP Act also requires the US Department of Labor to issue guidance with regard to employer compliance within 60 days after the enactment.

IMPLICATIONS FOR EMPLOYERS

Employers will need to update their reasonable accommodation and employee break policies to reflect the requirements in these laws. As noted above, employers have 180 days after the bill is signed before the PWFA takes effect and 120 days before the expanded access provisions of the PUMP Act come into force.

Many employers amended their reasonable accommodation policies to permit requests from pregnant employees following the Supreme Court decision in Young v. UPS. Employers in the roughly 30 states and localities that enacted pregnancy accommodation laws have also likely developed specific pregnancy accommodation policies that comply with those laws. These policies will now need to be carefully reviewed to ensure they comply with the minimum standards set by the PWFA.

This review will be particularly important for companies who base their pregnancy accommodation policies on ADA principles, as there are some significant distinctions between the obligations created by the ADA and PWFA. For instance, if an employee is temporarily unable to perform an essential job function due to a disability, the employer can require that employee to take leave as an accommodation under the ADA until they are able to fully perform that function. This is because the ADA never requires employers to waive or modify essential job duties. Under the PWFA, however, the employer must consider temporarily waiving that essential job function as an accommodation and permit the pregnant employee to continue working in that role. That is due to the PWFA’s more expansive definition of “qualified individual” in the PWFA and its prohibition on preferencing leave as an accommodation over adjustments that permit an employee to continue working.

Employers subject to the PUMP Act will need to find and designate adequate space for employees to express breast milk. In addition, employers may need to update their break and timekeeping policies and practices to ensure compliance with the PUMP Act.

Employers should work closely with counsel when amending their policies in response to these laws. They should also look for new regulations and/or enforcement guidance to be issued by the EEOC and Department of Labor prior to the laws taking effect.

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