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Congress Passes Additional Protections for Pregnant and Post-Partum Employees

Late last week, Congress passed two bills – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) – to provide additional workplace protections for pregnant and post-partum employees. The bills were passed as amendments to the omnibus spending bill, which President Biden signed on December 29, 2022.

But how do the PWFA and the PUMP Act differ from preexisting federal laws addressing pregnancy discrimination and employer requirements related to nursing employees? Both are briefly summarized below, followed by key takeaways for employers evaluating whether their current policies and practices align with the new federal laws.

Pregnant Workers Fairness Act (PWFA)

Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act in 1978, prohibits sex discrimination, including pregnancy discrimination, but does not require employers to provide reasonable accommodations to employees. Relatedly, the Americans with Disabilities Act (ADA) prohibits discrimination against applicants and employees based on a disability, including a pregnancy-related disability, and imposes requirements for providing reasonable accommodations. However, pregnancy itself is not a disability under the ADA. The PWFA, modeled after the ADA, fills what many have viewed as a long-standing gap between these preexisting federal laws by requiring covered employers to make reasonable accommodations to the known limitations related to an employee or applicant’s pregnancy, childbirth, or related medical condition.

Key Takeaways

  • Covered employers are defined as an employer with 15 or more employees
  • Effective date – June 27, 2023 – 180 days after the date of enactment
  • Like the ADA, the PWFA requires employers to engage in the “interactive process” with employees to determine whether an effective and reasonable accommodation is available
  • PWFA includes an exception where an employer can demonstrate that providing an accommodation would impose an undue hardship on business operations
  • Employers cannot require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided
  • Employers cannot deny employment opportunities or otherwise take adverse action on terms, conditions, or privileges of employment against a qualified employee on account of them requesting or using a reasonable accommodation
  • Both state law and/or municipal ordinances may provide greater protections to employees related to discrimination, accommodations, and unpaid and paid job-protected leave

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Federal law already requires employers to provide employees with reasonable break time to express breast milk for one year after the child’s birth and a place to do so, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public. However, when the Affordable Care Act was enacted, it excluded millions of employees—primarily salaried employees—from coverage. The PUMP Act amends the Fair Labor Standards Act (FLSA) to expand access to all employees.

Key Takeaways

  • Effective date – expanded access provisions became effective immediately upon enactment, while the law’s remedies provisions are effective April 28, 2023 – 120 days from the date of enactment
  • Time spent to express break milk must be considered “hours worked” if the employee is not completely relieved from duty during the entirety of such break
  • The PUMP Act includes an employer notice provision requiring employees to notify their employer of a failure to provide a suitable place to express breast milk, as defined by the law, and to allow ten days after such notification for the employer to come into compliance
  • The Act includes a hardship exemption for small businesses that employ less than 50 employees and makes certain exemptions for airline, railroad, and motorcoach industry employers
  • As with the PWFA, state law and/or municipal ordinances may provide greater protections to employees related to accommodations and additional rights regarding lactation

Employers with nationwide operations, as well as those operating in states with relatively strong employee protection laws, are most likely to be already complying (or close to) with the PWFA and PUMP Act.

Either way, it is prudent that employers review their employment policies for any necessary updates and to ensure their policies do not impermissibly carve out certain categories of employees. It’s particularly important on policies touching on discrimination, accommodations, including pregnancy-related leave, lactation, and timekeeping or compensation where breaks or “hours worked” may be described.

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