New Year, New Rights: Congress Bolsters Statutory Legal Protections for Pregnant and Nursing Employees

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On December 29, 2022, President Biden signed an omnibus spending bill which includes the Pregnant Workers Fairness Act[1] (PWFA) and the Providing Urgent Maternal Protection for Nursing Mothers Act[2]  (PUMP), two new laws that enhance and protect the rights of pregnant and nursing employees. Both Acts expand the legal protections for pregnant and nursing workers by aligning the requirements of both the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA).[3] In light of the new legislation, employers need to be aware of these obligations in order to comply with their expanded scope.

1. Pregnant Workers Fairness Act

Effective June 27, 2023, employers with fifteen (15) or more employees will be required to provide reasonable accommodations to pregnant workers. Much like the ADA, the PWFA affords employees and applicants the right to seek a reasonable accommodation for temporary limitations related to pregnancy, childbirth, and medical conditions, so long as the accommodation does not impose an undue hardship upon the employer. Although the ADA requires employers to provide accommodations for employees with complications arising from pregnancy (not pregnancy itself), the PWFA is far more expansive, and specifically ensures that pregnant employees, whether suffering from a pregnancy-induced complication or not, are provided the necessary accommodations needed to carry out the essential functions of their position.  In short, the PWFA is a companion law to the ADA for pregnant employees, whereas they were not previously in a protected class in an equivalent manner.

The Act, which is to be enforced by the Equal Employment Opportunity Commission (EEOC), renders it unlawful for employers to engage in the following:           

(1) not make reasonable accommodations to known limitation related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

(2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;

(3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;

(4) require a qualified employee to take leave whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or

(5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

Notably, as with ADA and other Title VII claims, the PWFA provides a private right of action for pregnant employees following the employee’s exhaustion of the EEOC administrative remedies.  As such, employers should be aware that they may now receive a discrimination charge premised on this Act alone, untethered to a more familiar ADA claim.

2. PUMP for Nursing Mothers Act

The PUMP Act, which serves as an amendment to the Break Time for Nursing Mothers Act, broadens current employer obligations to lactating employees under the Fair Labor Standards Act (FLSA). While the PUMP Act became effective immediately upon signing, the enforcement provision of the Act does not take effect until April 28, 2023.

The PUMP Act requires employers with fifty (50) or more employees to provide a reasonable break period for workers nursing a child up to one-year after the child’s birth. Different from the prior version of the Act, which excluded most salaried employees, the PUMP Act covers all employees, including both salaried and non-exempt workers. In addition, covered employers are required to provide a private space, other than a bathroom, that is free from intrusion, in which the employee can express breast milk.

Importantly, the Act clarifies that an employer is not required to compensate an employee receiving a break time, unless the employee is still clocked-in, or if the employee is not completely relieved of their job duties. The law also states that employers with fewer than 50 employees are not subject to the requirements of the Act, if the requirements would impose an undue hardship by causing a significant difficulty or expense in relation to the employer’s size, financial resources, nature, or structure.

The PUMP Act is also subject to the FLSA’s remedies’ provision, and provides a private right of action for employees who have suffered retaliation.

Key Takeaways for Employers

As the effective and enforcement dates of these new laws approach, employers should be aware of these expanded compliance obligations. We recommend that employers:

• Update their ADA and related accommodation policies to specifically reference pregnant employees and the PFWA and PUMP Acts;
• Update their accommodations processes to ensure pregnant employees are included in the interactive process;
• Update template severance agreement release language to include these acts specifically by reference;
• Train managers and HR staff on these new laws.

Keep in mind that while the PWFA and PUMP Act are federal laws, state specific laws on pregnant and lactating employees should also be kept in mind any time you consider a proper accommodation. For example, South Carolina employers should remain mindful of the South Carolina Pregnancy Accommodations Act and its specific requirements regarding pregnancy-related accommodations.

Nexsen Pruet’s employment team stands ready to help with policy development and all other needs pertaining to compliance with the new legislation and require

_{[1] Text - H.R.3110 - 117th Congress (2021-2022): PUMP for Nursing Mothers Act | Congress.gov | Library of Congress}

_{[2] Section 7(r) of the Fair Labor Standards Act – Break Time for Nursing Mothers Provision | U.S. Department of Labor (dol.gov)}

_{[3] Protections for Pregnant Workers Approved (shrm.org)}