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.
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.
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.