The federal rights of pregnant and nursing employees have expanded significantly thanks to Congress’s recent approval of two new statutes employers should be aware of: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Both were included in the recent omnibus spending bill, which President Biden signed on December 29, 2022.
The Pregnant Workers Fairness Act
The PWFA expands workplace protections for pregnant employees and applicants by requiring employers with 15 or more employees to provide reasonable accommodations for “known limitations” of “qualified” pregnant workers. The protections are similar to those provided to disabled employees under the Americans with Disabilities Act (ADA). Employers must engage in an interactive process with a qualified employee or applicant to determine a reasonable accommodation, provided the accommodation does not impose an unreasonable hardship on the employer. The PWFA protects qualified workers from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.
The PWFA defines “known limitation” as a physical or mental condition related to pregnancy, childbirth or related medical conditions that has been communicated to the employer “whether or not such condition meets the definition of disability” under the ADA.
A “qualified employee” is a worker who, with or without reasonable accommodation, can perform the essential functions of the employment position. However, the worker is considered qualified where: (1) any inability to perform an essential function is for a temporary period; or (2) the essential function could be performed in the near future.
The PWFA prohibits employers from, among other things, requiring 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 (as defined under the ADA). The PWFA additionally prohibits employers from requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.
The PUMP Act
The PUMP Act extends workplace protections to nursing employees by providing a reasonable time and a private space to express breastmilk, which cannot be a bathroom, for the first year of the baby’s life. Prior to the PUMP Act, these federal protections excluded most salaried employees, but the new law extends these rights to all breastfeeding employees—exempt and non-exempt. Additionally, the PUMP Act requires employers to count time spent expressing breastmilk as work hours if the employee is simultaneously working. Like the existing statute, employers with fewer than 50 employees may be exempt from the statute’s requirements if they can establish that compliance would impose an undue hardship.
Before commencing an action for violation of the PUMP Act, affected employees must notify their employer of the alleged violation and provide 10 days to cure, unless the employee has been discharged or the employer has expressed that it has no intention of providing a private place.
Practical Implications for Employers
Human resource departments and management personnel should comply with these laws by expanding the accommodations review process to include requests concerning pregnancy, childbirth and related medical conditions. Employers are also advised to prepare compliant policies and expand mandatory HR trainings to include a discussion of these new laws to ensure that managers and employees understand all the associated rights and obligations.