Two New Federal Laws Require Employers to Provide Pregnancy and Lactation Accommodations

January 17, 2023

On December 29, 2022, President Biden signed two new federal laws which require employers to provide pregnancy and lactation accommodations.  The Pregnant Workers Fairness Act (PWFA) mandates reasonable accommodations to qualified employees and applicants in connection with pregnancy, childbirth and related conditions, even absent a disability.  The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) expands the right to receive break time and a private place to pump at work to all employees, both exempt and non-exempt.  Under federal law, non-exempt employees have been entitled to these accommodations since 2010.  The PUMP Act also provides additional remedies to employees if an employer fails to provide accommodation or breaks. 

The PWFA takes effect on June 27, 2023. The PUMP Act’s accommodation and break time requirements take effect on April 28, 2023 and its remedy provisions are effective immediately.

Pregnant Workers Fairness Act

The PWFA makes it an unlawful employment practice for an employer with 15 or more employees to:

  • not make reasonable accommodations to known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the accommodation would impose an undue hardship on the employer;
  • 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;
  • deny employment opportunities to a qualified employee based on the need of the employer to make reasonable accommodations to the pregnancy, childbirth, or related medical conditions of the qualified employee;
  • require a qualified employee to take paid or unpaid leave 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
  • take adverse action against a qualified employee because the employee requested or used a reasonable accommodation provided under the statute.

The PWFA defines a “qualified employee” as an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant may still be qualified if they are temporarily unable to perform an essential job function.  As such, under the Act, employers may be required to accommodate qualified employees by temporarily relieving them of essential job duties.  The terms “reasonable accommodation” and “undue hardship” have the same meaning as used in the ADA.

Similar legislation is already in effect in at least 30 states and five localities.

The enforcement remedies and procedures available under Title VII also apply to the PWFA. Individuals who believe their rights were violated can file charges with the EEOC and/or state and local agencies.

The PWFA requires the EEOC to issue regulations interpreting the Act within 1 year of its December 2022 enactment.

The Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act expands existing federal law by providing that all lactating employees covered by the Fair Labor Standards Act (FLSA), both hourly and salaried, are entitled to reasonable break time and a private location, other than a bathroom, that is shielded from view and free from intrusion to express milk for two years following the birth of a child. 

Employees are not entitled to compensation for the break time unless otherwise required under state or federal law. However, break time is considered hours worked if employees are not completely relieved from duty during the entirety of the break.

The PUMP Act requires covered employees to notify their employer if they believe the employer is not in compliance with the Act and gives the employer 10 days from such notice to cure the noncompliance. The remedies available under the FLSA (e.g., unpaid wages, reinstatement, or liquidated damages) are available for violations of the PUMP Act.

The PUMP Act also directs the U.S. Department of Labor to issue guidance regarding compliance with the law within 60 days of its enactment.

What Employers Should Do Now

Employers should review and if necessary, revise their policies for pregnancy-related accommodations to make sure they reflect the requirements of the PWFA and the PUMP Act.  Particularly where any current policies were put in place to comply with state or local laws covering pregnancy and lactation accommodation requirements, employers should carefully review the existing policies to make sure that they also comply with the new federal requirements.  Also, employers should provide training to managers on the PWFA and PUMP Act’s accommodation requirements and how to comply with them.

Online Training on Disability, Pregnancy and Religious Accommodations

Clear Law Institute’s interactive online disability, pregnancy and religious accommodation training helps managers and other employees understand how to comply with the PWFA and PUMP Act and comply with other state and federal accommodation requirements.

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