On December 22, 2022, Congress passed an omnibus spending bill that expands rights for pregnant and nursing workers: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”). This bill was signed into law by President Biden on December 29, 2022. The PWFA goes into effect on June 27, 2023, while the PUMP Act and its enforcement provisions have already gone into effect.
The PWFA is largely modeled after the Americans with Disabilities Act (“ADA”) and requires certain employers, including most private employers with 15 or more employees, to make reasonable accommodations for qualified employees’ and applicants’ known limitations related to pregnancy, childbirth, or related medical conditions, unless such accommodations would impose an undue hardship on the employer. The PWFA adopts several key definitions from the ADA, including the definitions of “undue hardship” and “reasonable accommodation.” Additionally, like the ADA, the PWFA generally requires employers to engage in an “interactive process” to determine an appropriate reasonable accommodation. There are a few important differences between the PWFA and the ADA, however. For example, under the PWFA, an employee or applicant who is unable to perform the essential functions of their position may still be “qualified,” if the inability to perform is temporary, will end in the near future, and can be reasonably accommodated. Additionally, a covered employer cannot require a covered employee to take leave (paid or unpaid) as a PWFA accommodation if another reasonable accommodation is available. The differences between the ADA and the PWFA mean that employers’ existing ADA-based disability accommodation policies should not be applied to accommodation requests under the PWFA without proper modifications.
The PUMP Act covers most employers and strengthens protections for nursing employees regarding their right to take breaks during their workday to express breast milk. In addition to employees who are non-exempt under the Fair Labor Standards Act (“FLSA”) (i.e., employees who are entitled to receive the minimum wage and overtime), the PUMP Act covers exempt employees (i.e., employees who are not entitled to receive the minimum wage and/or overtime). The PUMP Act requires a covered employer to provide a nursing employee with reasonable time and a private location, other than a bathroom, that is shielded from view and free from intrusion by coworkers, to express breast milk, for up to one year following the birth of the employee’s child. Non-exempt employees’ pumping breaks must be considered time worked, unless the employees are completely relieved of duty for the entirety of such breaks. Exempt employees should generally be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk. The PUMP Act excludes small employers with fewer than 50 employees, if compliance would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Employers should be aware, however, that the undue hardship analysis is likely to be heavily fact-specific and to require a case-by-case evaluation. Employers’ existing lactation policies should be reviewed to ensure they comport with the PUMP Act, and employers without lactation policies should consult with employment counsel to determine whether to implement such a policy