On December 29, 2022, President Biden signed the Consolidated Appropriation Act, 2023, into law. In addition to providing $1.7 trillion in funding for the U.S. federal government for the 2023 fiscal year, the Act also adopted two acts implementing certain workplace rights and protections for pregnant and nursing employees: (1) the Pregnant Workers Fairness Act (“PWFA”); and (2) the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act. Each are discussed in turn below.
THE PREGNANT WORKERS FAIRNESS ACT (“PWFA”)
I. PURPOSE AND RELATED LAWS
The PWFA will take effect June 27, 2023. Its goal is to fill in jurisdictional gaps in pregnancy accommodation legislation to expand protections nationwide for pregnant employees who need an accommodation to perform their job duties, even in the absence of an underlying medical condition. The text of the statute can be found here.
Prior to the PWFA’s passage, thirty states and five cities had adopted pregnancy accommodation legislation, but there were no pregnancy accommodation protections under federal law. The federal Pregnancy Discrimination Act (“PDA”) prohibits discrimination against employees because of pregnancy, but it does not require employers to affirmatively accommodate pregnancy or pregnancy-related conditions. Similarly, the Americans with Disabilities Act (“ADA”) does not include pregnancy in its definition of an “impairment,” meaning that pregnancy is not a disability under the ADA and pregnant works can only obtain an ADA accommodation if they have a pregnancy-related disability or some other disability.
Modeled after the ADA, the PWFA requires employers with 15 or more employees (i.e., those otherwise covered by Title VII or the ADA) to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions in nearly the same way it considers requests for accommodation related to other disabilities. Specifically, the PWFA makes it unlawful for an employer to:
- Fail to make reasonable accommodations to the known limitations of a qualified employee or applicant related to pregnancy, childbirth, or related medical condition(s), unless the employer can show that the accommodation would impose an undue hardship on business operations.
- Require a qualified employee or applicant to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.
- Require a qualified employee to take leave (whether paid or unpaid) if another reasonable accommodation is available that allows the employee to continue working.
- Deny employment opportunities to a qualified employee or applicant because a reasonable accommodation must be provided.
- Retaliate against a qualified employee or applicant (i.e., take adverse action in terms, conditions, or privileges of employment) for requesting or using a reasonable accommodation., or any employee who makes a charge, testifies, assists, or participates in any investigation, proceeding, or hearing related to violations of the PWFA.
- Coerce, intimidate, threaten, or interfere with an individual’s exercise of rights granted by the PWFA, or because an individual aids or encourages others to exercise such rights.
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. However, unlike the ADA, the PWFA expands the definition to expressly provide that an employee may still be qualified if they are temporarily unable to perform an essential function of the job due to pregnancy, childbirth, or a related condition; the essential function could be performed in the near future; and the inability to perform the essential function can be reasonably accommodated. In other words, the employer may be required to temporarily relieve a pregnant employee of essential job duties if needed.
The PWFA uses an identical definition of “reasonable accommodation” and “undue hardship” as the ADA. An employee is not necessarily entitled to the accommodation of their choice – instead, the interactive process must be used to determine an appropriate reasonable accommodation. Reasonable accommodations for qualified employees under the PWFA may include things such as (i) light duty; (ii) assistance with heavy labor and lifting; (iii) temporary transfer; (iv) additional or modified breaks: (v) time off; (vi) flexible scheduling or changes to start/end times; (vii) modifications to uniform policies; (viii) additions or modifications to workstations, such as providing a sitting stool or relocation of desks.
Like both Title VII and the ADA, the Equal Employment Opportunity Commission (“EEOC”) will oversee PWFA compliance. Employees or applications seeking to recover for a violation of the PWFA will be required to exhaust their administrative remedies by filing a charge with the EEOC and/or state and local fair employment practices departments for investigation. The PWFA provides an affirmative defense for employers that work in good faith with an employee to identify alternative accommodation that are equally effective and do not cause an undue hardship. There is also a carve-out exemption for religious organizations under certain circumstances.
The PWFA does not preempt more generous state and local laws. This means that employers may need to comply with stricter standards for pregnancy accommodation in certain jurisdictions. For example, California caselaw provides that state accommodation laws apply to pregnant employees of an employer with 5 or more employees. Similarly, some jurisdictions may limit the circumstances under which an employer may ask for medical documentation to confirm an employee’s pregnancy, childbirth, or related medical conditions as part of the interactive process.
IV. NEXT STEPS FOR EMPLOYERS
Employers with 15 or more employees (or who reasonably estimate they will fall within this threshold in the future) should begin preparing for the June 27, 2023 enactment date:
- Review and update all reasonable accommodation policies to include PWFA language.
- Train HR and management in the basics of the PWFA and best practices for responding to requests or complaints related to accommodations for pregnancy, childbirth, or related conditions.
- Implement an evaluation system for employees requesting an accommodation due to pregnancy or childbirth related limitations. The system should be in line with not only the PWFA, but any corresponding state or local jurisdiction requirements. This may require creation or modification of applicable forms.
THE PROVIDING URGENT MATERNAL PROTECTIONS
FOR NURSING MOTHERS (“PUMP”) ACT
I. PURPOSE AND RELATED LAWS
The PUMP Act is now in effect – it became immediately effective at the time of President Biden’s signing of the 2023 omnibus bill. However, employers are provided a quasi-grace period to implement its requirements, because the Act’s remedies provisions do not go into effect until April 28, 2023. Its goal is to fill in jurisdictional gaps in protections for lactating employees by requiring reasonable break time and private location (other than a bathroom) for milk expression.
Since 2010, the Fair Labor Standards Act (“FLSA”) has required employers with 50 or more employees to provide non-exempt employees lactation accommodations. Now, the PUMP Act expands and amends the FLSA to require employers provide coverage for all employees (non-exempt and exempt employees), allowing them reasonable break time and private location to express milk. Like the FLSA, the PUMP Act has a small employer exemption for employers with less than 50 employees, if compliance would create undue hardship due to significant difficult or expense. The text of the statute can be found here.
The PUMP Act requires employers to provide for all employees – whether salaried or hourly – who need to express breast milk for the employee’s nursing child for one (1) year following the child’s birth:
- A “reasonable” break time for any employee to express breast milk as needed; and
- A place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk as needed.
The break time may be unpaid unless federal, state, or local law requires otherwise. Employers must pay non-exempt nursing employees if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their regular weekly or bi-weekly salary, regardless of if an employee take a break to express breast milk.
The PUMP Act requires employees to notify their employer of any perceived violations of the Act. Employers are given 10 days to remedy the non-compliance before a suit may be filed. However, this 10-day notification period is waived for claims alleging: (i) the employee was terminated for making a request under the PUMP Act; (ii) the employee opposed an employer’s refusal to provide a reasonable break time or location to express milk; or (iii) the employer expressed its intent to not comply with the Act. Remedies available for violations of the PUMP Act are the same as those available under the FLSA, including unpaid wages, reinstatement, or liquidated damages.
The PUMP Act does not preempt more generous state and local laws. This means that employers may need to comply with stricter standards for lactation accommodation in certain jurisdictions. For example, in addition to a private location to express milk, California requires employers to provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to an employee’s workspace.
IV. NEXT STEPS FOR EMPLOYERS
Employers should immediately begin preparing for the April 28, 2023 penalty enactment date:
- Review and update all employee break policies to include the requirements of the Pump Act.
- Train HR and management on the basics of the PUMP Act and best practices for responding to break time requests and needs.
- Evaluate options for creating a private space for employees to express breast milk as needed. A permanent space is not required – temporarily creating or converting a space as needed would be compliant with the Act. Employers with less than 50 employees may also need to evaluate whether compliance will create an undue hardship.
If you have questions or want assistance updating workplace policies to ensure compliance with these new laws, please contact a BurnsBarton lawyer.