By Stacy L. Fode and Rachel H. Khedouri, Esq.
UPDATE: The EEOC issued its proposed Regulations to Implement the Pregnant Workers Fairness Act for publication in the Federal Register on August 11, 2023. Public comments must be received by the EEOC on or before October 10, 2023.
On December 29, 2022, President Biden signed the 2023 Consolidated Appropriations Act (“CAA”). Along with providing $1.7 trillion in discretionary funding for federal agencies, the CAA adds two significant legislative initiatives expanding protections for pregnant and nursing employees: (1) the Providing Urgent Maternal Protections for Nursing Mothers Act (also known as the “PUMP” Act) and (2) the Pregnant Workers Fairness Act. Here is what employers need to know about these new laws:
The PUMP Act
In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for non-exempt nursing mothers to express breast milk up to one year after birth of a child and a location to do so. The PUMP Act extends these rights to cover all private employees, including those exempt from the FLSA’s minimum wage and overtime requirements. The new law also specifies that the time spent pumping must be considered hours worked (which is important for calculating non-exempt overtime) unless the employee is completely relieved of work responsibilities during the break time given. The location must be a private space other than a bathroom that is “shielded from view” and also “free from intrusion” by either coworkers or the public. Employers with less than 50 employees may be exempted from the PUMP Act’s requirements if they can establish that providing the break and/or place to pump creates an “undue hardship”, which is defined here as causing “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure” of the business at issue. The law also creates exceptions for employees in certain industries where its requirements may not be feasible, such as the crew members of air carriers and certain employees of rail carriers or motorcoach services operators where the employer would have to incur significant expense to provide the break required or compliance would result in unsafe conditions.
The PUMP Act went into effect immediately on December 29, 2022. Employers who are not yet in compliance with its terms have a short reprieve from the new penalties under the Act, as they are not effective for 120 days, or April 28, 2023. In addition, any employee wishing to bring an action against an employer for not providing a compliant break location must first notify the employer of its failure and give the company 10 days to cure the violation. The notice requirement does not apply to employees who were terminated in retaliation for requesting break time or a place to nurse or where the employer has indicated that it has no intention of providing a compliant location.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (“PWFA”) is scheduled to go into effect 180 days after it was signed by President Biden, or June 27, 2023. The PWFA requires employers with 15 or more employees to provide reasonable accommodations to qualified applicants or employees who have communicated to the company that they have a physical or mental condition related to pregnancy, childbirth or related medical conditions (referred to in the Act as a “known limitation”), unless the accommodations would impose an undue hardship on the operations of the business. To be qualified, the individual must be able to perform the essential functions of the position, with or without reasonable accommodation, or the inability to perform an essential function must be for a temporary period and can be performed in the near future. The PWFA covers all pregnancy-related known limitations, even if these do not rise to the level of a covered disability under the Americans with Disabilities Act (“ADA”), however, the definitions of “reasonable accommodation” and “undue hardship” have the same meanings under the PWFA as under the ADA. Regardless of whether the limitations qualify as disabilities, employers are required to engage in the same type of good faith interactive process to determine appropriate reasonable accommodations for workers impacted by pregnancy as under the ADA.
The PWFA expressly provides that an employer may not require an employee to take leave as an accommodation – even if it will be paid – if another reasonable accommodation can be made. The PWFA also prohibits employers from denying employment opportunities based on the need to make accommodations or taking adverse employment action against an employee for requesting or using reasonable accommodation. Remedies for violation of the PWFA are generally the same as violations of Title VII discrimination protections with compensatory and punitive damages capped between $50,000 and $300,000 depending on employer size. Additional information on how employers are expected to comply with the PWFA is forthcoming, as the EEOC has been tasked with issuing regulations under the PWFA — which will include examples of reasonable accommodations – within one year from its signing.
In addition to federal laws, California already requires employers to provide accommodations for pregnant and/or lactating employees. For example, pursuant to California’s Labor Code, employers must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has a need to express milk. The Fair Employment and Housing Act (FEHA) further prohibits an employer from discriminating against or harassing any employees because of pregnancy, childbirth, or breastfeeding. While most California employers may not have to develop new policies or practices based on the new federal laws with respect to pregnant or lactating employees, all employers should review and update their existing policies and practices to ensure compliance with both federal and state laws.
Employers should keep in mind that they may be subject to more stringent requirements to accommodate pregnant or nursing workers under state or local law – both the PUMP Act and the PWFA expressly provide that other laws giving greater or equal protection for individuals affected by pregnancy, childbirth or related medical conditions or for breastfeeding workers remain in effect.
If you have any questions relating to this eAlert or need help updating your reasonable accommodation process or other employment policies to comply with these new federal laws, please reach out to the NFC Attorney with whom you typically work or call us at 972.665.9100.