Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On December 22, 2022, the 117th Congress passed with bipartisan support an omnibus spending bill, which includes two measures that expand rights for pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). President Biden is expected to sign the bill before the end of the year.
Pregnant Workers Fairness Act
Modeled after the Americans with Disabilities Act (ADA), the PWFA expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. Employers must do so by engaging in an interactive process with a qualified employee or applicant covered by the PWFA to determine a reasonable accommodation, provided it does not impose an undue hardship on the employer. Additionally, an employer may not require an employee covered by the PWFA to take paid or unpaid leave if another reasonable accommodation is available. The PWFA also protects employees covered by the PWFA from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.
Relief for private-sector employees is the same as that provided under Title VII, including reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. Public-sector employees are provided similar relief as that offered under the Congressional Accountability Act, Title V of the United States Code, and the Government Employee Rights Act of 1991. The PWFA expressly waives state immunity under the Eleventh Amendment to the Constitution.
The PWFA also directs the Equal Employment Opportunity Commission (EEOC) to issue regulations within one year of the date the law is enacted that provide examples of reasonable accommodations that address known limitations related to pregnancy, childbirth, and related medical conditions.
The PUMP Act expands workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk. The PUMP Act expands upon a 2010 amendment to the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child. This newly passed law expands this right to cover all employees covered by the FLSA, both exempt and non-exempt.
As was the case with the original amendment, employers with fewer than 50 employees may be exempt from complying if they can establish that doing so would impose an undue hardship causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
The PUMP Act also adds specific exemptions for crewmembers of air carriers, train crews of rail carriers and motorcoach services operators who are involved in the movement of a motorcoach.
Before commencing an action for not providing a private place for the employee to express milk, an affected employee must notify their employer of the alleged failure to provide a private area to pump; the employer has 10 days to remedy the situation. The notification period is waived if the employee’s employment has been terminated in retaliation 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.
The PUMP Act also amends the FLSA to clarify that the same damages that are available under other provisions of the FLSA are available for violations of the PUMP Act, which include the payment of unpaid wages, reinstatement, back and front pay, and liquidated damages.
What Can Employers Do?
Companies will want to ensure their policies are up-to-date and that they are prepared to comply with both of these new laws by providing support to pregnant employees and employees otherwise covered by the PWFA and employees who are lactating.