by This may be a good time for employers to review their policies and practices regarding pregnant and nursing employees. On December 29, 2022, two federal laws extending workplace protections for pregnant and nursing workers were adopted. On May 17, 2023, new agency guidance was issued regarding one of the laws. The effective date of the other law is June 27, 2023.
The laws provide support by extending rights regarding lactation breaks and requiring reasonable accommodations for employees with temporary limitations. The Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act) expanded existing Fair Labor Standards Act (FLSA) employer obligations to give an employee reasonable break time to express breast milk for the employee’s nursing child for twelve months after the child’s birth. The new Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations to employees and applicants with known temporary limitations on the ability to perform essential functions of the job due to a physical or mental condition related to pregnancy, childbirth, and related medical conditions.
The PUMP Act, effective December 29, 2022, limits the employer’s obligation to give an employee reasonable break time to express breast milk to twelve months after the child’s birth. State law may provide greater or different employer obligations. For example, Minnesota recently enacted a law protecting pumping breaks for as long as the child is nursing rather than capping the protection at twelve months after the child’s birth. When federal law and state law conflict regarding job protections, the law with greater benefits or protections applies.
The U.S. Department of Labor just issued a Field Assistance Bulletin to help department staff to enforce the PUMP Act. Highlights of the new guidance include:
- The FLSA rules on compensable time apply to lactation breaks. Federal law does not require that such breaks be paid time, but employees must be paid for any time spent pumping when they are not fully relieved from duties or when pumping during an otherwise paid break.
- Employees are entitled to breaks every time they need to pump. The length and frequency of breaks will vary from employee to employee. Even though employees and employers may agree to a daily schedule based on the employee’s needs, employers cannot require employees to comply with a fixed schedule. The employee’s needs determine the frequency and timing of the breaks.
- The bulletin explains what an acceptable pumping location must include regarding seating, surfaces, milk storage, and use of pumping equipment.
The entire bulletin can be found on the department’s website at https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf.
Effective June 27, 2023, PWFA reasonable accommodation requirements apply to employers with fifteen or more employees. Key provisions:
- The terminology and use of an interactive process to determine a reasonable accommodation mirror the process of the Americans with Disabilities Act.
- The specific limitations of the employee’s situation should be evaluated in determining an accommodation. The employee’s choice of accommodation should be assessed carefully but is not required to be provided. At the same time, an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation is available.
- Employers should review the state law where the employee is located. Some states give employees rights to specific accommodations such as breaks and schedule changes.
In addition to updating policies and practices, employers may need to offer manager and staff training on the new laws (and any new state laws).
