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The rights and protections afforded to pregnant and nursing individuals at work have been expanded through two laws passed as amendments to the $1.7 trillion government spending bill signed by President Joe Biden just before the new year. 

Pregnant Worker’s Fairness Act (PWFA)

The focus and function of the PWFA is to afford reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions. Applicable to employers with 15 or more employees, the PWFA extends the protections of the Pregnancy Discrimination Act (PDA). The PDA prohibited discrimination in the workplace on the basis of pregnancy, childbirth, or related medical conditions; however, it did not reference reasonable accommodations for pregnancy. 

The Holding in Young v. United Parcel Service

While the PDA addressed some pregnancy-related issues, there was a noticeable gap in the law as evidenced by the holding in Young v. UPS. In Young, the U.S. Supreme Court functionally determined that the right to a reasonable accommodation for pregnant workers is not free standing under the PDA. Rather, the PDA only requires employers to provide pregnant workers with accommodation where it is granting accommodation to similarly situated comparators. As a result, to establish a right to redress under the PDA, the holding in Young required pregnant workers to identify a similarly situated comparator receiving accommodation. This holding necessitated a challenging, highly-fact specific judicial analyses of whether an employer’s refusal to grant accommodation was discriminatory, e.g. not provided to other similarly situated employees requiring accommodations. 

PWFA Increases Protections for “Qualified Employees”

With the passage of the PWFA, “qualified employees” now maintain an independent right to reasonable accommodation for issues arising from pregnancy, childbirth, or related medical conditions. They are also protected from discrimination against or retaliation for needing any such accommodation. 

These protections extend to applicants for employment, making it unlawful to deny employment opportunities based on the known necessity to provide accommodation. ”Qualified employees”’ are defined as employees or applicants who can perform the essential functions of the job with or without reasonable accommodation. They also  include any employee or applicant who meet the following criteria: (1) temporarily unable to perform an essential job function; (2) the essential job function could be performed in the near future; and, (3) the inability to perform the essential job function can be reasonably accommodated. 

The PWFA provides for the same interactive process set forth in the Americans with Disabilities Act (ADA) as between the employer and employee to arrive at an appropriate reasonable accommodation. It also contains a notice element, requiring that an employer know of an employee’s limitation requiring accommodation before a violation of the PWFA can be found. Further, the PWFA utilizes the same definitions of terms as the ADA for “reasonable accommodation” and “undue hardship.” 

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

The PUMP Act amends the Fair Labor Standards Act (FLSA) to afford greater protections to employees with a need to express breastmilk while at work. Specifically, the PUMP Act requires most employers to provide break times and a private area -– other than a bathroom – for all employees to express breast milk. This accommodation must be granted for a one-year period from the time the need arises (ordinarily, following the birth of a child). 

This law, effective December 29, 2022, differs from the previous “Break Time for Nursing Mothers.” For example, it provides coverage for more than non-exempt employees, and in a broader range of sectors. The changes to the remedies are effective April 28, 2023.     

An employee cannot successfully raise liability under the PUMP Act without first providing the employer with notice of its noncompliance and 10 days to remedy. However, an exception applies if the employee was terminated or the employer clearly conveyed that it has no intention of providing the accommodation. 

Importantly, time spent expressing breast milk must also be considered hours worked if the employee is able to simultaneously perform work functions. However, non-exempt employees may not be required to be paid for their break unless other laws require it. The PUMP Act provides specific exemptions for air carriers for in-flight crew members as well as limits for rail and motor carrier companies. Additionally, the small employer exemption for employers with less than 50 employees remains available.

What Does This Mean for Employers?

PWFA – The three major steps for employers are: policy review, updating accommodation forms, and conducting training for managers and human resources. First, employers should review their accommodation policies to ensure that it makes reasonable accommodations available for pregnancy, childbirth, and related medical issues. This language may be included into an existing policy or drafted as policy unto itself. Second, employers should also modify their ADA accommodation forms to take into account the criteria to determine if the pregnant employee is a “qualified employee” meeting the criteria. Third, employers should ensure their managers and human resources representatives are prepared to address requests from employees, such that the interactive process occurs and is documented.   

PUMP Act – Employers should draft or amend existing lactation policies to ensure inclusion of the additional protections afforded by the PUMP Act, specifically the change in application to exempt and non-exempt employees. Further, it is a great opportunity to remind managers (and other employees) of their obligations to respect employees’ rights to take breaks in private spaces to express breast milk.

The PWFA and PUMP Act set minimum standards to protect individuals in the workplace affected by pregnancy, childbirth, or related medical conditions, and lactation needs. However, approximately 40 states, including New York, New Jersey, California, and Pennsylvania maintain independent statutes related to pregnancy accommodation and/or lactation in the workplace. When conducting policy reviews, employers should always consult local and state regulations to ensure compliance with any greater protections afforded by relevant state legislation.