In the past 6 months, Congress passed two pregnancy-related acts—the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act and the Pregnant Workers Fairness Act (PWFA). Although some of the Acts’ provisions overlap with requirements of other federal and state laws already in place, both Acts require more stringent obligations on employers.
Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act
The PUMP Act, signed December 29, 2022, broadens the number of workers who must be accommodated by their workplaces for lactation. It also specifies how employees who pump while working must be compensated as well as provides additional means of legal recourse. The law requires employers to provide a reasonable break for an employee to express breast milk “each time” the employee needs one for one year after the child’s birth.
The PUMP Act amends the Fair Labor Standards Act (FLSA) to mandate employers who provide paid breaks to other employees to also pay employees for breaks used for expressing milk. The PUMP Act specifies unless the employee is relieved of all obligations throughout the duration of the break, time spent expressing shall be counted as hours worked. Also, the full break must be paid for if the employee is interrupted while it is in progress.
The PUMP Act provisions overlap with requirements from the previous pregnancy-related law, the Break Time for Nursing Mothers Act, signed in 2010 as part of the Affordable Care Act. The PUMP Act will still require an employer to provide a private, non-bathroom space free from intrusion to express breast milk, and the Act exempts employers with fewer than fifty (50) employees if it would cause undue hardship. Undue hardship in this context is analyzed on a case-by-case basis as the request for an accommodation arises. Industries that are exempt from the law regardless of the employer’s size are air and rail carrier crew members and motor coach operators.
Effective as of April 28, 2023, the PUMP Act provides a private right of action that includes remedies for back pay, front pay, liquidated damages, attorneys’ fees, and costs.
On May 17, 2023, the U.S. Department of Labor (DOL) Wage and Hour Division issued Field Assistance Bulletin No. 2023-2 (FAB) to provide guidance on the PUMP Act and its enforcement. The FAB emphasized that accommodations will vary based on the needs of the employee. For instance, the DOL reminds employers that the frequency and duration of breaks will differ based on factors specific to the nursing employee and the child. It also notes that any agreed-upon break schedules may need to be adjusted over time in conjunction with the changing needs of the employees.
The FAB further notes that employers will address the location space for lactation requirements differently. The bulletin suggests providing private rooms with a lock or signage advising the space is in use. The bulletin also notes that the use of partitions or privacy screens can satisfy the requirements.
While the law only requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk,” the FAB expands on that requirement and notes that it must be a functional space. A functional space is defined as follows:
A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.
The DOL also recommended the space include electricity for the use of electric pumps, and recommended the location be close to a sink for hand washing.
Lastly, the DOL updated its Minimum Wage Poster on employees’ rights under the FLSA to include information on employees’ rights under the PUMP Act. Employers will want to replace the August 2016 poster with the updated April 2023 version.
Pregnant Workers Fairness Act (PWFA)
The PWFA, in effect as of June 27, 2023, guarantees the affirmative right to receive reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions notwithstanding an “undue hardship” on the employer. Importantly, this new law undoes a previous requirement that employees prove they should be accommodated. Instead, the onus is now on employers to work in good faith with workers to provide appropriate accommodations. Employees cannot be forced to take leave if it is possible to provide accommodations for them, nor can they be forced to accept accommodations that are not reasonable.
The PWFA provides a new cause of action separate and apart from existing actions under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). Each of the existing laws have different purposes and protections. Title VII protects from discrimination and the ADA only protects workers who have a medical complication from pregnancy, but does not classify pregnancy as a disability – thereby limiting its ability to provide relief to employees. The PWFA expands protections and is designed to provide reasonable accommodations to individuals with known limitations related to pregnancy, childbirth or related medical conditions. The PWFA extends the requirements of the ADA to pregnant employees and seeks to cover the gap left by the current federal law protecting pregnant and postpartum employees who need accommodations. Unlike the requirements of previous federal laws governing pregnancy discrimination, under the PWFA, pregnant or postpartum employees and applicants seeking reasonable accommodations are no longer required to (1) have a pregnancy-related disability or (2) identify other similarly situated employees with accommodations.
To ensure compliance with the PWFA, employers should carefully consider the reasonableness of accommodations before denying an employee’s request. Under previously issued federal case law, the standard as whether or not the denial of the accommodation presented an undue burden on the employee. The PWFA shifts the standard so that the denial of accommodation must present an undue hardship for the employer. As such, employers will now have to prove this burden in litigation.
Similarly to the ADA, the PWFA requires employers to have a good faith conversation, with the employee seeking an accommodation. This conversation, termed the interactive process, is permitted to occur by phone, email, or other ways conducive to the situation. Best practice is to always document the communication(s) with the employee in a confirming correspondence or memorandum.
The PFWA applies to employers in private industry with fifteen (15) or more employees and to all government employers. The PWFA applies the applicable remedies under Title VII for violations. Even though many states already have legislation requiring the accommodations under the PFWA, the Act provides this relief in all states.