Expanded Employment Protections to Pregnant Workers and Applicants
As part of the Consolidated Appropriations Act of 2023, President Biden recently signed into law two measures that expand rights for pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
The PWFA requires employers with 15 or more employees to provide reasonable accommodations to employees with conditions related to pregnancy or childbirth. Reasonable accommodations could include light duty that does not involve heavy lifting or allowing more frequent bathroom breaks. The PWFA also prohibits employers from discriminating against a job candidate or retaliating against an employee because of their need for a pregnancy-related accommodation.
The PWFA mirrors the Americans with Disability Act (ADA), adopting the same definition of “reasonable accommodation” and “interactive process.” While elements of the PWFA already may be familiar to many employers, the PWFA differs from the ADA when it comes to an employee’s ability to fulfill the “essential functions” of their position. Under the ADA, employees are not entitled to accommodation if they cannot complete their essential functions with or without accommodation. Whereas the PWFA allows pregnant workers to forgo the essential functions of their position temporarily in certain circumstances.
The PWFA becomes effective June 27, 2023. The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcement of this Act, will be issuing regulations within a year to further explain the requirements of the PWFA. Relief for private-sector employees is the same as that provided under Title VII, including reinstatement, compensatory damages and the right to recover attorneys’ fees and costs.
The PUMP Act expands and amends existing federal law by providing that all lactating employees, both exempt and non-exempt, are entitled to reasonable break time and privacy to express breastmilk for one year following the birth of a child.
Employers with fewer than 50 employees may be exempt from complying if they can establish that doing so would impose an undue hardship. The PUMP Act also adds specific exemptions for crewmembers of air carriers, train crews of rail carriers and motorcoach industries.
The new law requires employees to notify their employer if they believe their rights have been violated and provides employers 10 days to remedy the situation before commencing an action for non-compliance with the PUMP Act. This grace period does not apply if an employee is terminated in retaliation for making a request or opposing an employer’s refusal to provide a place to express milk under the law, or if the employer indicated it will not provide a private place for the employee to do so.
Enforcement of the PUMP Act is set to take effect on April 28, 2023. Under the PUMP Act, the Department of Labor is required to issue additional guidance within 60 days after its enactment. The PUMP Act expands existing law by providing remedies available under the Fair Labor Standards Act (FLSA), including unpaid wages, reinstatement or liquidated damages.
For more information on PWFA, please see our latest article, "Employers Must Update 'Know Your Rights' Posters to Reflect New Protections for Pregnant Workers."
Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.