New Year, New Protections for Pregnant and Nursing Employees

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) into law.

Passage of these laws means that this coming spring and summer will usher in an expansion of workplace protections for pregnant and nursing employees throughout the country. The PWFA, modeled after the Americans with Disabilities Act (ADA), will solidify pregnant employees’ right to various workplace accommodations for pregnancy. The ADA does not recognize pregnancy itself as a qualifying disability under the ADA, which has previously left a gap in protection for expecting employees that the PWFA is aimed to resolve.

PUMP will expand break time requirements for nursing mothers (currently only applicable to non-exempt workers) to exempt employees.

Key takeaways with respect to both laws are included below.

Who do these laws apply to?

• PWFA — The PWFA applies to employers with 15 or more employees and pregnant employees who can perform the necessary functions of their job, with or without accommodations.
• PUMP — PUMP applies broadly, with no absolute workforce limitation. However, employers with fewer than 50 employees are not subject to PUMP if compliance would impose an undue hardship on the business. Whether compliance would create an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. Further, crewmembers of air carriers are exempted from the law.

What do these laws do?

• PWFA — The PWFA requires qualifying employers to provide reasonable accommodations for job applicants and employees with known limitations (whether physical or mental) related to pregnancy, childbirth, and associated medical conditions, unless providing the accommodation would create an undue hardship for the employer.These types of accommodations may include special seating, more frequent restroom or rest breaks, light-duty assignments, or easy access to water or snacks, among others. The PWFA adopts the interactive process that is used under the ADA for requesting an accommodation and determining whether a particular accommodation is reasonable.

  The PWFA also provides that employers cannot force an employee to take a leave of absence, paid or unpaid, if another reasonable accommodation is available.

• PUMP — The Fair Labor Standards Act (FLSA) already requires employers to provide female employees reasonable break time and a clean space shielded from view to express breastmilk for one year after their child’s birth. However, the law did not apply to large categories of workers, such as exempt employees.

PUMP expands workplace accommodations for nursing mothers in several ways, including expanding its reach to salaried employees. Break time for expressing milk may be unpaid unless otherwise required by federal, state, or local law. Employers should carefully evaluate wage and hour requirements that may be impacted by PUMP, particularly since the Department of Labor has signaled an increased focus on wage and hour enforcement this past year.

For example, non-exempt employees should not perform any work during their pumping break, otherwise they must be paid their regular hourly rate. Employers must pay exempt employees their regular weekly salary regardless of whether they take breaks to express breast milk. Further, if a nursing employee uses a regularly scheduled break to express milk, the employee must be compensated in the same way that other employees are compensated for a regularly scheduled break.

When do the laws take effect?

• PWFA — This law will take effect on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) is tasked with preparing regulations related to the PWFA, but has one year to do so.
• PUMP — Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. On April 28, 2023, the remedies changes will become effective.

Conclusion

We recommend all employers impacted by these new laws closely review their current polices — including accommodation policies — and practices to determine whether they need to make changes in order to comply with the requirements under these new laws. The PWFA and PUMP do not preempt state or local laws that provide greater protection than these laws, so make sure your company is complying with local requirements as well. If your company needs assistance with revising current policies or other compliance questions related to these new laws, please contact your Foley attorney to be directed to the appropriate resource.