by The $1.7 trillion spending bill passed by Congress last week was signed into law by the President on Thursday, December 29, 2022. Among the approximately 1500 pages of the bill are two employment laws providing protections for pregnant and lactating employees. The new laws expand on existing employee rights and may require employers to change how they handle employee requests for accommodations and breaks. Both the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) had been proposed in one form or another in the past two years, but neither had been able to get sufficient support for passage in both the House of Representatives and the Senate.
The Pregnant Workers Fairness Act (PWFA)
The PWFA requires private employers with 15 or more employees to provide reasonable accommodations for known limitations of qualified pregnant workers. Employers will be familiar with some of the terms used in the PWFA that are similar to terms under the Americans with Disabilities Act (ADA), such as interactive accommodation process and essential functions. However, the PWFA defines other key terms differently than the disability law:
- “Known limitation” is defined as a physical or mental condition related to pregnancy, childbirth, or related medical conditions that have been communicated to the employer. The condition does not need to meet the definition of disability under the Americans with Disabilities Act (ADA) to qualify for accommodation under the PWFA.
- “Qualified employee” means a worker who, with or without reasonable accommodation, can perform the job’s essential functions. The worker, however, will be considered qualified if:
- The inability to perform an essential function is for a temporary period;
- The essential function could be performed in the near future; and
- The inability to perform the essential function can be reasonably accommodated.
In providing an accommodation under the PWFA, the employer is prohibited from:
- Requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than a reasonable accommodation arrived at through the interactive process; or
- Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The PUMP Act amends the Fair Labor Standards Act (FLSA) to require most employers to provide reasonable break time for lactating workers for one year following the child’s birth. This expands on previous FLSA requirements for such breaks. The terms of the new law are similar to many state law requirements on the topic:
- An acceptable lactation room is one shielded from view of others and free from intrusion by coworkers or others. A restroom is not an acceptable lactation room under the PUMP Act.
- Break time is not required to be compensable time unless the employee is not completely relieved from duties during the entirety of the break.
- Employees must provide the employer notice of a violation before making a complaint to the Department of Labor (DOL) for failure to provide a place to express milk. The employee must provide the employer notice of the violation and give the employer ten days to remedy the breach.
- The notice and opportunity to cure the violation are not required before making a complaint if the employee has been discharged or the employer has stated that it has no intention of providing breaks or an acceptable lactation location.
What’s Next:
The PWFA is effective June 27, 2023. The PUMP act was effective upon the bill’s signing on December 29, 2022, with the exception of its remedy provisions which have a delayed effective date of April 28, 2023 . Employers may need to update written policies, administrative processes, and management training to meet the requirements of the new laws. The EEOC, which will administer the PWFA, and the DOL, which will enforce the PUMP Act, are expected to issue fact sheets and other guidance for employers.
