Expanded Protections for Pregnant and Nursing Employees
January 26, 2023 • Matt Baker
Category: Legal Updates
On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law.
The Pregnant Workers Fairness Act (PWFA)
Like the American with Disabilities Act (ADA), the PWFA requires employers at least 15 employees to make reasonable accommodations for employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions, so long as those limitations do not impose undue hardship. The PWFA does not provide a specific list of acceptable reasonable accommodations. However, such reasonable accommodations can include: additional bathroom breaks, stools for workers who stand, limiting contact with certain chemicals, and reducing lifting requirements.
Under the PWFA, it is unlawful for an employer to:
1) Fail to provide reasonable accommodations for qualified employees absent a showing that the accommodation would impose an undue hardship on employer’s business;
2) Require qualified employees to accept an accommodation other than any reasonable accommodation arrived at after engaging in 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 (paid or unpaid), if another reasonable accommodation can be provided that would allow the employee to continue working while maintaining a healthy pregnancy; 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 (PUMP for Nursing Mothers Act)
The PUMP for Nursing Mothers Act expands existing workplace protections under the Fair Labor Standards Act (FSLA) for employees with a need to express breast milk. The Act also amends the FSLA to now cover all employees, including those that were previously excluded based on being exempt employees. It also clarifies when an employee must be compensated for time spent pumping and provides legal remedies for nursing employees in the event of a violation.
The PUMP for Nursing Mothers Act requires employers to provide the following to a nursing employee:
1) A reasonable break time to express breast milk each time such employee has need to express breast milk for a 2-year period beginning on the date on which the circumstances related to such need arise; and
2) A place, other than a bathroom, shielded from view and intrusion from coworkers and the public, which may be used by the employee for nursing.
Under The PUMP Act, employers are required to compensate non-exempt employees if they take such breaks during an otherwise paid break or if they are not completely relieved of work duty for the entire break period. Exempt employees should be compensated their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk. The PUMP Act does not apply to employers with less than 50 employees if it would cause an undue hardship on the employer.
Many states and localities already require employers to provide some accommodations for pregnant and/or nursing employees. The PWFA and PUMP for Nursing Mothers Act now ensures that nursing mothers are protected under federal law.
Contact Stokes Wagner if you have any questions.
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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.
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