Employers Have New Obligations Regarding Pregnant and Breastfeeding Employees Under Recently Passed Federal Legislation
Two recently passed pieces of federal legislation impose new obligations on employers regarding pregnant or breastfeeding employees. The accommodations employers must provide expectant and new moms are contained in the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which President Biden signed into law on December 23, 2022, as part of the bipartisan omnibus spending bill. Employers that fail to follow the requirements of these employment laws can face consequences and claims similar to those for violations of the Americans With Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964
Pregnant Workers Fairness Act
The PWFA mirrors but expands several of the protections and rights contained in the ADA. Effective on June 27, 2023, the law requires both public and private sector employers with 15 or more employees to make reasonable accommodations for employees with a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The PWFA remedies a shortcoming of the ADA that required a pregnancy-related medical condition to qualify as a “disability” in order to receive protections. As such, the ADA did not require employers to make reasonable accommodations for women who experience many common pregnancy-related conditions. That is no longer the case.
Just as required under the ADA, an employer must engage in an interactive process with a “qualified employee” to find a reasonable accommodation so long as the proposed accommodation does not impose an undue hardship on the employer. The PWFA defines a “qualified employee” as an employee or job applicant who can perform the position’s essential functions with or without reasonable accommodation, with specific exceptions.
The PWFA also makes it a prohibited employment practice to:
- Deny employment opportunities because of the employer’s need to make reasonable accommodations for a qualified employee;
- Require a qualified employee to take paid or unpaid leave if the employer can provide another reasonable accommodation; or
- Take adverse action against a qualified employee who asks for or avails themself of a reasonable accommodation.
As noted, remedies for private-sector employees who allege violations of the PWFA are the same as those provided under Title VII, including reinstatement, front and back pay, compensatory and punitive damages, and reasonable attorneys’ fees and costs.
The PWFA tasks the Equal Employment Opportunity Commission (EEOC) with disseminating regulations implementing the law by December 2024, including providing specific examples of reasonable accommodations. Employers may have more difficulty asserting “undue hardship” than they would under the ADA, as accommodations for pregnancy-related conditions will almost always be temporary.
This law amends the Fair Labor Standards Act (FLSA) by expanding workplace protections for all new mothers, not just employees who were eligible for overtime. FLSA requires employers to provide nursing employees with a private space (other than a restroom) and a reasonable amount of time to express breast milk for up to one year after the child’s birth. Now, employers (subject to the exceptions described below) will need to provide all breastfeeding new mothers, regardless of exempt or non-exempt status, the required accommodations for reasonable time and privacy.
Employers do not need to compensate employees during these breaks if they are not performing any work. However, if an employee is not completely off duty for the break’s entirety, the break is considered “hours worked,” and the worker must be compensated for such time. For example, an employee who chooses to express breast milk while on a conference call must be compensated for such time.
Employers with fewer than 50 employees may be exempt from the PUMP Act’s requirements if they can show that compliance would impose an undue hardship. Additional exceptions apply to crewmembers of air carriers, motorcoach services operators, and rail carrier crews.
If an employee claims their employer failed to comply with the act’s requirements regarding a private area to express milk, they must notify the employer of the alleged violation. The employer then has ten days to remedy the situation. However, an employee does not need to provide such notice if they claim they were retaliated against for requesting a place to pump milk, objecting to the employer’s failure to provide a private space, or if the employer indicated it would not provide a private place.
The PUMP Act’s remedies for aggrieved employees include recovering unpaid wages, reinstatement, front and back pay, compensatory damages, and liquidated damages. The law’s provisions regarding breaks and private spaces became effective upon its enactment in December. However, the remedies in the act are not available to aggrieved employees until April 28, 2023.If you have any questions or concerns regarding your company’s obligations under the PWFA or PUMP Act, please contact one of Maddin Hauser’s Employment and Workforce Management attorneys.