Federally Expanded Protections for Pregnant and Nursing Employees
Senior Compliance Attorney
On December 22, 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law. These two new laws provide expanded protections for pregnant and nursing employees.
The Pregnant Workers Fairness Act (PWFA)
The PWFA is effective June 27, 2023. The law requires employers with 15 or more employees to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. An “undue hardship” is defined as a significant difficulty or expense for the employer. The PWFA applies only to accommodations.
Current laws enforced by the Equal Employment Opportunity Commission (EEOC) make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. Employers should know that “reasonable accommodations” are defined as changes to the work environment or the manner in which job duties are completed. Examples of reasonable accommodations for pregnant employees may include:
- The ability to sit or drink water
- Closer parking
- Flexible hours
- Appropriately sized uniforms and safety apparel
- Additional break time to use the bathroom, eat, and rest
- Leave or time off to recover from childbirth
- Limitations from strenuous activities and/or activities that involve exposure to chemicals not safe for pregnancy.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The PUMP Act requires employers to provide all employees with a reasonable break period to express breast milk each time such employees need to do so during the first year after the birth of their child. Recently, The U.S. Department of Labor (DOL) released updated guidance on the changes to the Fair Labor Standards Act (FLSA) due to the PUMP Act. Key provisions of the Act include:
- An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but an employer cannot require an employee to adhere to a fixed schedule.
- The employer must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which the employee may use to express breast milk.
- The PUMP Act does not require that employees be compensated for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.” Under the FLSA all hours worked must be compensated and break time to pump will be considered hours worked if an employee is not completely relieved from duty during the entirety of the break. Short breaks, usually 20 minutes or less, provided by the employer must be counted as hours worked.
- Employers with fewer than 50 workers are not subject to the PUMP Act if such requirements would impose an undue hardship on the employer.
- Retaliation against an employee for exercising their rights to pump at work or initiating a complaint against the employer is prohibited.
- Employers who violate the PUMP Act are liable under the FLSA and may face remedies including payment of lost wages, compensatory damages, and punitive damages where appropriate.
- Employers are required to maintain a posted notice in a location conspicuous to employees explaining the FLSA with these provisions. Employers may also consider an electronic notice for remote employees.
Resources for Employers
Here are some resources to help employers who are looking to further understand their obligations on this topic:
Key Takeaways:
With passage of the PWFA and PUMP Acts, federal protections for pregnant and nursing employees have expanded. Employers would be well-served to review organizational policies and procedures. Particular attention is advised in regards to nursing employees and reasonable accommodations for pregnant employees to ensure compliance with these federal requirements.
The PWFA and PUMP Act do not replace state or local laws that are more protective of pregnant or nursing employees, and it is recommended to consult with your employment counsel to ensure your organizational practices align with applicable laws.
Reach out to your M3 account executive or risk manager for additional information about risk management and insurance coverage considerations.
