On December 22, 2022, after nearly an 18-month delay, the US Congress passed the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) with bipartisan support. Signed by President Biden on Thursday, December 29, 2022, these two laws will expand rights for pregnant, post-partum, and nursing employees.
Pregnant Workers Fairness Act
The PWFA expands 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 reasonable accommodation, provided it does not impose an undue hardship on the employer.
The law also prohibits:
- Employers from placing an employee on a leave of absence (e.g., paid or unpaid leave) when another reasonable accommodation is available; and
- Retaliation, coercion, intimidation, threats, or interference against employees seeking or taking reasonable accommodation.
Providing Urgent Maternal Protections for Nursing Mothers Act
The PUMP Act provides further workplace protections for lactating and breastfeeding employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk. It 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 the first year of the baby’s life. The new law expands this right to cover all employees (i.e., both exempt and non-exempt employees) covered by the FLSA.
Employers with less than 50 employees may be exempt from complying with the PUMP Act if they can show that doing so would cause 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.
If an employee believes their employer does not provide a private place to express milk, the affected employee must first notify their employer of the alleged failure to provide a private area to pump milk before commencing an action. The employer will have 10 days to remedy the situation. This notification period, however, 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
- The employer indicated it will not provide a private place for the employee to do so.
What Should Employers Do?
Employers should ensure that their policies and practices are updated and reflect compliance with both laws by providing support to pregnant, post-partum, and nursing employees. It is important to note, however, that many states have their own expanded pregnancy accommodation law. For example, the California Fair Employment and Housing Act provides that it is unlawful for an employer “to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition.” Therefore, if you are an employer in a state that already requires reasonable accommodation for pregnancy-related medical conditions your policies and practices may not change much. Nevertheless, employers should review current policies and practices and consider expanding their accommodations review process.
For more information on the new legislation and how to implement policies and practices to best support pregnant, post-partum, and nursing employees, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
