Expanded Protections for Pregnant and Nursing Employees

By Samantha J. Wood - Shawe & Rosenthal LLP

January 9, 2023

On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.
 
The Pregnant Workers Fairness Act
 
The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA).  Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions.  The Act makes it unlawful to take any of the following adverse actions:

•    Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
•    Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
•    Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
•    Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
•    Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees.  Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law.  The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions.  Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.
 
Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act.  In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.
 
Providing Urgent Maternal Protections for Nursing Mothers Act
 
The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child.  Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.
 
The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees.  The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.
 
The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance.  The employer then has up to ten (10) days to come into compliance with the required accommodations.
 
Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.

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