E-Alert: New Federal Protections for Pregnant and Nursing Workers

On December 29, 2022, President Biden signed into law two new protections for pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act. Both measures will impose new federal requirements on employers regarding the accommodation of pregnant and nursing workers.

The PWFA, which goes into effect on June 27, 2023, gives workers with conditions arising from pregnancy or childbirth the right to reasonable accommodations in the workplace, so long as it does not impose an undue hardship on the employer. The PWFA requires reasonable accommodations for a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, regardless of whether the condition meets the definition of disability under the Americans with Disabilities Act (ADA). The PWFA prohibits employers from placing a qualified employee on a leave of absence when a different reasonable accommodation option is available. The PWFA uses the same definitions for “reasonable accommodation” and “undue hardship” as in the ADA and requires employers to utilize the same interactive process as the ADA.

The PFWA applies to all public and private employers with fifteen or more employees, and covers all “qualified employees,” meaning all employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs because of the above-stated conditions. Either a qualified employee or their representative can make the employer aware of the limitations and the need for accommodation.

The PUMP Act, which went into effect on December 29, 2022 (with exception of a change to available remedies that goes into effect on April 28, 2023), amends the Fair Labor Standards Act and expands already existing federal law requiring employers with fifty or more employees to provide reasonable accommodations (including breaks and a private, non-bathroom space) to breastfeeding workers to express milk. The PUMP Act will cover many workers who were not previously entitled to those accommodations, such as salaried employees.

The PUMP Act requires employers to give space and reasonable break time for a nursing employee to pump breast milk, for up to one year after the employee’s child is born. The break time may be unpaid unless required by local or state law, but non-exempt employees must be paid during the breaks if they are not completely relieved from duty during the break or if they pump during a break they would otherwise be paid for.

Importantly, the PUMP Act now requires employees to notify their employers if they believe their employer is violating the Act and give the employer ten days to come into compliance before filing a lawsuit. Employers with fewer than 50 employees can still rely on the small employer exemption if compliance with the Act would cause undue hardship because of significant difficulty or expense. Some employees in certain industries are exempted from the Act, such as airplane flight crewmembers.

To better understand how these new laws could impact your business, you should work closely with counsel to review and assess the need to update existing employment policies and practices. If you have questions, please feel free to contact one of our employment attorneys by calling (501) 371-9999.