by Lora Jennings Mizell

The close of 2022 brought new federal employment legislation affecting the rights of pregnant and nursing workers – the Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) applies to employers with fifteen (15) or more employees.  The PWFA becomes effective June 27, 2023, and is intended to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”  In short, the PWFA functions similar to the ADA in requiring employers to provide reasonable accommodations to pregnant workers for temporary, known limitations related to the pregnancy, childbirth or related medical conditions unless the accommodation would impose an undue burden on the employer.    

The PWFA makes it unlawful for an employer to:

(1) not make reasonable accommodations for the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee, unless the employer can demonstrate the accommodation would impose an undue hardship on the employer’s business;

(2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;

(3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;

(4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; or

(5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

            The PWFA will be enforced by the EEOC, and provides an employee with a private cause of action (a right to file a civil lawsuit under PWFA).  As such, employers may receive a charge of discrimination based solely on an alleged violation of the PWFA alone.  In addition, the PWFA contains an anti-retaliation provision prohibiting any discrimination or retaliation against an employee who has requested an accommodation or otherwise opposed any unlawful practice under the PWFA.  The PWFA provides a defense to damages for employers who demonstrate good faith efforts to identify and make a reasonable accommodation that would provide the employee with an equally effective alternative accommodation that would not cause an undue hardship.

The “PUMP (Providing Urgent Maternal Protections) for Nursing Mothers Act”

            The PUMP for Nursing Mothers Act amends the Fair Labor Standards Act and expands existing protections for employees to take break time to express breast milk.  The PUMP Act requires employers to provide a “reasonable break time for an employee to express breast milk,” and to provide a place “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

            The PUMP for Nursing Mothers Act covers all employees, both exempt and non-exempt.  Previously, only non-exempt employees were covered.  The employer is not required to compensate an employee receiving such break time; however, non-exempt employees should be paid for such break time when the break time would otherwise be a paid break or when the employee is not completely relieved from work duties during the entire break period.  

            In the event an employee believes the employer has failed to provide an appropriate space for the employee to express breast milk, the employee is required to provide a 10 calendar day notice of the failure, and allow the employer to correct the violation before filing suit.

            Employers with fewer than 50 employees may be exempt from the Act when the Act’s requirements would impose an undue hardship, which is considered in light of the employer’s size, financial resources, nature or business structure.

            The PUMP for Nursing Mothers Act became effective upon signing, but enforcement will take effect April 28, 2023.

Employers would be well served to:    

•     Provide training to supervisors and human resources personnel about the PWFA, including the need to include pregnant workers in the interactive process and determine reasonable accommodations;
•     Provide training to supervisors and human resources personnel about the PUMP for Nursing Mothers Act;
•     Update applicable policies and procedures to refer to the PWFA and PUMP for Nursing Mothers Act;
•     Consider any state or municipal ordinances that provide greater protections than provided by the PWFA when reviewing applicable policies and procedures

If you are an employer with questions about PWFA or PUMP for Nursing Mothers Act, please contact one of Martin Pringle's employment law attorneys.