Congress Expands Protections for Pregnant and Nursing Employees
Congress recently passed a $1.7 trillion bipartisan spending bill, which includes two laws – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) – designed to protect workers who are pregnant or breastfeeding. On December 29, 2022, President Biden signed the bill into law.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act is a bipartisan proposal to guarantee basic workplace protections for pregnant workers. The stated purpose of the PWFA is “[t]o eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”
Like the workplace accommodations available under the Americans with Disabilities Act (ADA), the PWFA requires employers with 15 or more employees to make reasonable accommodations for employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions, enabling them to continue working while maintaining a healthy pregnancy. Although the PWFA currently does not provide a list of specific reasonable accommodations, such accommodations can potentially include: additional bathroom breaks, stools for workers who stand, limiting contact with certain chemicals, and reducing lifting requirements.
More specifically, the Act makes it unlawful for employers to:
(1) fail to provide reasonable accommodations for qualified employees, unless employers can demonstrate that the accommodation would impose an undue hardship on the operation of the employer's business;
(2) require qualified employees to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
(3) deny employment opportunities to qualified employees if the denial is based on an employer’s need to make a reasonable accommodation for such employees;
(4) require qualified employees to take leave, whether paid or unpaid, if another reasonable accommodation can be provided; and
(5) take adverse action against a qualified employee on the basis of the employee requesting or using a reasonable accommodation.
The Providing Urgent Maternal Protections for Nursing Mothers Act
The Providing Urgent Maternal Protections for Nursing Mothers Act, also known as the PUMP Act, expands workplace protections for employees with a need to express breast milk. The stated purpose of the PUMP Act is “to expand access to breastfeeding accommodations in the workplace, and for other purposes.” Although the Fair Labor Standards Act (FLSA) was amended to provide some protections for certain non-salaried nursing workers when the Patient Protection and Affordable Care Act was passed in 2010, the PUMP Act further amends the FLSA to increase those protections by including millions of salaried employees who were previously excluded from such protection. The new law also clarifies when workers must be compensated for time spent pumping and provides legal remedies for nursing workers for potential violations.
More specifically, the PUMP Act requires employers to provide:
(1) a reasonable break time for an employee to express breast milk each time such employee has need to express breast milk for the 2-year period beginning on the date on which the circumstances related to such need arise; and
(2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
The PUMP Act also requires employers to compensate employees who take such breaks if the employee is working during the break. Note that the PUMP Act does not apply to employers with less than 50 employees if it would cause such employers an undue hardship, and contains specific exemptions for some workers in the transportation industry.
What This Means for Employers
Many states and cities already require some employers to provide accommodations for pregnant and/or lactating employees. For example, California’s Labor Code and Fair Employment and Housing Act currently require employers to provide reasonable accommodations for pregnant and breastfeeding employees, including requiring employers to provide additional break-time for employees to express breast milk. Thus while certain employers may not have to overhaul their existing practices and policies with respect to pregnant and/or lactating employees, all employers should review their relevant practices and policies to ensure that they are in compliance with both the PWFA and the PUMP Act.
As always, Mintz’s Employment, Labor and Benefits team stands ready to assist with any compliance concerns employers may have.
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Kevin K. Kim
He handles cases involving wage and hour, trade secret misappropriation, and discrimination claims and represents clients in government investigations.