New Workplace Protections for Pregnant and Nursing Employees

Labor and Employment Alert

On December 29, 2022, President Biden signed the Fiscal Year 2023 Omnibus Spending Bill into law. The bill included two new laws expanding workplace protections for pregnant and nursing employees: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).

PWFA: Disability-Like Protections for Pregnant Employees and Applicants

The PWFA, which goes into effect June 27, 2023, creates protections for qualified employees and applicants affected by pregnancy, child birth, and other related medical conditions. The PWFA defines qualified employees and applicants as those who, with or without reasonable accommodation, can perform the essential functions of the position.

Similar to the Americans with Disabilities Act (“ADA”), the PWFA prohibits discriminatory employment practices and requires a reasonable accommodation be made through an interactive process. Additionally, the PWFA adopts the ADA’s definitions of “reasonable accommodation” “undue hardship,” and “interactive process.” Employers do not have to make an accommodation if it can demonstrate that doing so would impose an undue hardship on the operation of the employer’s business.

The PWFA applies to private sector employers with 15 or more employees. Remedies available under the PWFA include, but are not limited to, back pay, front pay, compensatory damages, punitive damages, and, if appropriate, reinstatement and promotion.  

PUMP Act: Expansion of Protections for Nursing Employees

The PUMP Act amends the Fair Labor Standards Act (“FLSA”) to require accommodations for employees to express breast milk. Beginning April 28, 2023, employers are required to provide (1) a reasonable break time for employees to express breast milk, and (2) a space other than a bathroom that is shielded from view and private for employees to express breast milk.  While the first requirement has been in effect for overtime eligible employees since 2010, the PUMP Act expands this protection to all employees, regardless of their exemption status.  The PUMP Act also expands the duration of accommodation period from one to two years.

As with FLSA, breaks under the PUMP Act are not compensable time. However, if an employee is not completely relieved of their duties during the break, the break is considered hours worked and the employee must be paid for that time.  Importantly, unlike other FLSA violations, employees must notify the employer of the perceived noncompliance and give the employer 10 days to remedy the situation before pursuing a claim.

Employers with less than 50 employees may be exempt from the requirements of the PUMP Act if compliance would impose an undue hardship.  The PUMP Act also includes exemptions for employers in the airline, railroad, and motorcoach services industries.

To ensure compliance with the PWFA and the PUMP Act, employers should review and revise their current policies and procedures adequately. Many states and local laws also require employers to provide different and greater accommodations than those outlined in the PWFA and the PUMP Act.  Both the PUMP Act and the PWFA do not preempt state laws or municipal ordinances that provide greater protections. As such, it is vital that employers take steps now to understand the new laws and additional obligations they may have in certain states and localities.

If you have any questions about the PWFA or the PUMP Act, or need assistance reviewing and updating your business’ policies and procedures, please contact one of Honigman’s Labor and Employment attorneys.

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