The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the "PUMP" Act) were signed into law by President Biden on December 29, 2022. These two new laws require covered employers to provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions as well as providing defined accommodations for nursing mothers. The purpose of this legislation is not to replace existing statutory protections, but rather to enhance safeguards already in place by further eliminating pregnancy discrimination and advocating for women's health and economic security. This legislation provides employers more specific guidelines regarding accommodations and policies that should be implemented by employers.
The Pregnant Workers Fairness Act (PWFA)
The PWFA is intended to protect employees and applicants of "covered employers" who "have known limitations relating to pregnancy, childbirth, or related medical conditions." Covered employers include both public and private employers with 15 or more employees. A person with a pregnancy-related limitation is entitled to reasonable accommodation. Reasonable accommodations are defined as "changes to the work environment, or the way things are usually done at work." The new law requires that employers provide reasonable accommodations unless it would cause an undue hardship such as a "significant difficulty or expense."
Current governing law in this area, the Pregnancy Discrimination Act (PDA), prohibits employers from taking adverse employment actions on the basis of pregnancy. The law does not go as far as to require any specific reasonable accommodations for pregnant employees. The standard in the PDA is that employers are only required to accommodate pregnant employees to the same extent they would give comparable accommodations to similarly-situated, non-pregnant employees.
By contrast, the PWFA utilizes the definition of "reasonable accommodation" and "undue hardship" included in the Americans with Disabilities Act. The ADA asks employers to engage in an interactive process to arrive at a place for of reasonable accommodation appropriate for each individual employee who needs accommodation based on a physical limitation to continue their work. The PWFA "prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or other related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions."
Under PWFA, unlawful employment practices may include:
- Failure to make reasonable accommodations to known limitations of pregnant employees unless accommodation would result in an undue hardship on the employer's business operations.
- Requiring a qualified employee to accept an accommodation, without engaging in a collaborative discussion between employer and employee regarding the accommodation and its necessity. In other words, employers cannot force a pregnant woman to take an accommodation.
- Employer may not deny employment opportunities due to the fact that the employee requires a reasonable accommodation.
- Cannot force employee to take paid or unpaid leave if another reasonable accommodation can be provided.
- May not take adverse action or retaliate against the employee such as negatively altering the terms, conditions, or privileges of employment who requests a reasonable accommodation.
The House Committee on Education and Labor Report also outlined several examples of possible reasonable accommodations such as:
- Closer parking to the building
- Ability to sit or drink water
- Flexible hours
- Additional break time to use the restroom, eat and rest
- Take leave or time off to recover from childbirth
- Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy
- Receive appropriately sized uniforms and safety apparel
The Equal Employment Opportunity Commission (EEOC) will begin accepting charges under the PWFA on June 27, 2023. This law is not retroactive and will only apply to claims that occur on that date or later. Workers with claims prior to this date may rely on the pregnancy discrimination laws already in place such as Title VII or the Americans with Disabilities Act to pursue their claims.
The PUMP Act
The PUMP Act revises current provisions in the Fair Labor Standards Act (FLSA) by mandating that employers accommodate breastfeeding employees with additional break time and a private location to express breast milk for at least two years after their child is born. The private location must be somewhere besides a bathroom and should be shielded from view as well as free from intrusion by co-workers or the public. Further, the time spent to express breast milk must be calculated as hours worked if the employee is also working.
Previously these protections were only codified as to exempt employees, but with the passage of this legislation, all breastfeeding employees are included regardless of status. The only possible exception is employers with 50 or less employees who would suffer an undue hardship in order to comply such as a "significant difficulty or expense when considered in relation to its size, financial resources, nature, or structure of the employer's business." "The PUMP Act's provisions took effect on Dec. 29, 2022. However, amendments to available remedies will become effective on April 28, 2023.
Best Practices for Employers Moving Forward
- Review current policies and change or modify to comply with the new requirements for pregnant and breastfeeding employees.
- Examine current reasonable accommodation policy to ensure that it is in compliance with all applicable federal laws including PUMP and the PWFA.
- Consider implementing a process to review employee requests for accommodation based on pregnancy or related conditions if one is not already in place. Be sure to include a clear outline of how to request an accommodation as well as the process for reviewing and making a decision as to what accommodation will be granted.
- Establish a private space for breastfeeding mothers if your company has not already done so.
- Maintain an open line of communication with the employee to assess changing needs and to evaluate the effectiveness of the accommodation.
The attorneys at WSHB are ready to answer your questions in these two pieces of important legislation. Please do not hesitate to reach out to a member of our team for assistance.
To read the PWFA in its entirety please click here.
To read the PUMP Act click here.