As 2022 came to a close, President Biden signed the 2023 omnibus government funding bill. Included in the bill—with bipartisan support—are two provisions that expand protections for pregnant and nursing employees. Both of the measures—the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (or PUMP) for Nursing Mothers Act—are aligned with Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act (ADA), and many existing state laws. But the new legislation clarifies many of the rights and treatment of working mothers that have historically been pieced together under multiple statutes, regulations, and court decisions.
Adding to the Family of Accommodation Rights
The PWFA requires employers with 15 or more employees to engage in an interactive process to determine temporary reasonable workplace accommodations for pregnant applicants and employees with conditions related to pregnancy and/or childbirth, and to provide such accommodations where doing so would not impose an undue hardship. The Act borrows from Title VII (including the Pregnancy Discrimination Act) and the ADA in defining many of its material terms. For example, the PWFA’s definition of “covered entities” encompasses Title VII’s definition of the term “respondent.” Similarly, the PWFA utilizes the ADA’s definitions of the terms “reasonable accommodation,” and “undue hardship,” and borrows from the ADA definition of “qualified individual” in defining a “qualified employee” as one who is able to perform the essential functions of a position with or without a reasonable accommodation, or has only a temporary inability to perform an essential function.
With all of the language overlap, it begs the question of whether employers will need to implement any new measures or protocols to comply with the PWFA. In most cases, the answer is likely to be yes.
Adding to the prohibitions against discrimination afforded pregnant employees under Title VII (via the Pregnancy Discrimination Act), the PWFA explicitly renders it an unlawful employment practice to:
- Fail to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, absent undue hardship;
- Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation not arrived at through an interactive process;
- Require a qualified employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided; and
- Take any adverse employment action, including denial of employment or employment opportunities, because an employee requests or uses a reasonable accommodation provided under the PWFA.
The PWFA also contains non-retaliation provisions that prohibit adverse action against employees who oppose unlawful conduct or who file a charge, testify, assist, or participate in any manner in an investigation, proceeding or hearing regarding a PWFA violation. The law also proscribes coercion, intimidation, threats, or interference directed toward individuals who exercise their rights under the PWFA or who aid or encourage others in the exercise of such rights.
Remedies available to private-sector employees are the same as those provided under Title VII, including reinstatement, back pay, front pay, compensatory damages, punitive damages, and recovery of attorneys’ fees and costs. The Act requires the EEOC to issue regulations within one year of the law’s enactment and directs that the regulations include examples of reasonable accommodations.
Employers should be mindful of these expanded protections for pregnant employees and carefully consider accommodations that may be needed as a result of their pregnancy.
Expressing Support for Nursing Mothers
The PUMP Act amends the Fair Labor Standards Act (FLSA) by requiring employers to provide all employees—both exempt and non-exempt—with reasonable break time and a private location other than a restroom in which to express breast milk. Under a 2010 amendment to the FLSA, the protections afforded by the PUMP Act were available to non-exempt employees only. The 2010 amendment also gave employers with fewer than 50 employees an exemption from complying with the foregoing requirements if the employer was able to show that doing so would present an undue hardship in terms of expense or other difficulties in light of the employer’s size, resources, nature, or business structure. Notably, this exemption available to smaller employers remains available under the PUMP Act. The act adds a further exemption for air carrier crew members, rail carrier crew members, and motor coach operators.
Employees must provide an employer with notice of an alleged failure to comply with the requirement to provide a private location to pump and give the employer 10 days to remedy the matter before initiating any legal action based on the failure. The notice period is waived, however, if the employee has already been terminated in retaliation for making a request for space to express breast milk or for otherwise opposing an employer’s refusal to provide such a space. Remedies for non-compliance are the same as those available under the FLSA, including payment of unpaid wages, reinstatement, back pay, front pay, and liquidated damages.
What this Means for Employers
The PWFA’s requirements do not take effect until June 2023, but the PUMP Act took effect on the date of enactment. Thus, employers subject to the PUMP Act will need to immediately ensure that they afford to all nursing mothers, regardless of their status as exempt or non-exempt, adequate break time and access to a private location for purposes of expressing breast milk. Employers should also evaluate their current policies and procedures to ensure they are prepared to address accommodation requests from pregnant employees. Many states already have existing pregnancy-specific accommodation laws that are broader than former federal law, so it’s possible some employers may already have compliant policies. Preparation may also include training for personnel responsible for fielding and administering accommodation requests for pregnant employees.
If you have any questions regarding the issues addressed in this Alert, please contact the authors, Becky Kalas, partner in our Chicago office at bkalas@fordharrison.com or Paige Lyle, counsel in our Nashville and Atlanta offices at plyle@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.