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President Joe Biden ended 2022 with a bang by signing two new pieces of legislation into law that will impact many employers and their pregnant and breastfeeding workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”). These changes were part of the Omnibus Spending Bill signed into law on Dec. 29, 2022. Employers should become familiar with the changes and review their policies and practices to adjust for the new laws.
The Pregnant Workers Fairness Act
The first change, made by the PWFA, provides additional protections to pregnant workers. The PWFA prohibits any employment practice that either directly or indirectly discriminates against qualified employees who are affected by pregnancy, childbirth or related medical conditions by failing to provide reasonable accommodations, unless the accommodation would create an undue hardship on the operation of the business.
Similar to the definition of a qualified individual with a disability under the Americans with Disabilities Act, a “qualified employee” under the PWFA is an employee or prospective employee who can perform the essential functions of the position with or without reasonable accommodation. The PWFA’s protections extend beyond those provided by the ADA, however, by requiring that employers reasonably accommodate employees with a known medical condition related to, affected by or arising out of pregnancy, childbirth or related conditions even if the employee’s condition does not meet the ADA’s definition of “disability.”
Further, the PWFA prohibits employers from (1) requiring a qualified employee to accept an accommodation that differs from the reasonable accommodation arrived at through the interactive process between the employer and employee; (2) denying employment opportunities because of the need for such reasonable accommodations; (3) requiring qualified employees to take paid or unpaid leave if another reasonable accommodation is available; and (4) taking adverse action against the qualified employee — such as altering the terms and/or conditions of their employment, demotion or termination — because of the qualified employee’s reasonable accommodation.
The law will go into effect on June 27, 2023, and will apply to private employers with 15 or more employees.
The Providing Urgent Maternal Protections for Nursing Mothers Act
The second change, courtesy of the PUMP Act, extends protections for nursing mothers. By moving language in the Fair Labor Standards Act, the PUMP Act extends the already existing law requiring that employers provide reasonable accommodations for breastfeeding employees to express milk while at the workplace for up to one year after birth to all breastfeeding employees, regardless of whether they are entitled to overtime under the FLSA. A reasonable accommodation in this context includes providing breaks and a private, nonbathroom space in which employees can address their lactation needs. The PUMP Act also clarifies that, although the breaks are unpaid unless otherwise required by federal or state law, the break time will be considered “hours worked” (i.e., a paid break) for nonexempt employees if employees are not completely relieved from their duties during the break. Similar to the current law, employers with less than 50 employees do not need to comply with the PUMP Act if doing so would impose an undue hardship for the employer, which is defined as a “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure” of the business. The PUMP Act also provides exemptions for crew members of air carriers and for certain employees of rail carriers and motorcoach services operators.
Under the PUMP Act, with limited exceptions, before an employee files an action against an employer for failure to provide a private space that is not a bathroom, the employee must notify the employer of the failure to provide the space and give the employer 10 days to comply with the law.
The PUMP Act was effective immediately upon enactment (Dec. 29, 2022), but the provision requiring employers to treat employee breaks as hours worked if the employee is not completely relieved from their duties will not be effective until April 28, 2023 (120 days after the enactment date).
Employers should review their handbooks and other policies to ensure they are updated to comply with these changes. In addition, employers should educate their supervisors and managers about the changes in the law to help avoid inadvertent missteps in the future.•
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Tami Earnhart and Masallay Komrabai-Kanu are attorneys with Ice Miller LLP. Opinions expressed are those of the authors.
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