Congress recently enacted two new laws expanding protections for pregnant and new mothers at the workplace.
The Pregnant Workers Fairness Act (“PWFA”)
Beginning June 27, 2023, employers with 15 or more employees must provide “reasonable accommodations” for employees’ known limitations related to pregnancy, childbirth, or related medical conditions.
Reasonable accommodations consist of changes to an employee’s work environment. These include closer parking; flexible hours; appropriately-sized uniforms; additional break time to use the bathroom, eat, and rest; leave or time off to recover from childbirth; and being excused from activities which are strenuous and/or involve exposure to compounds not safe for pregnancy.
In addition, employers may not require an employee to accept a specific accommodation without prior discussions; deny a job to a qualified employee or applicant because an accommodation is needed; require an employee to take a leave if another reasonable accommodation can be provided; and interfere with an employee’s rights under the PWFA.
Employers may be exempt from providing such reasonable accommodation if doing so will cause them “undue hardship” as defined in the Americans with Disabilities Act (“ADA”). This generally means significant difficulty or expense, when considered in light of the nature and cost of the accommodation, the financial resources of the employer and the facility involved, and the type of operations of the employer.
Future regulations and court decisions will define the statute’s contours. It is likely that, to the extent possible, PWFA’s reasonable accommodation requirements will be construed consistent with other laws requiring accommodations.
In this regard, FOS’s Winter 2022 newsletter described a recent, pre-PWFA Seventh Circuit Court of Appeals case which discussed reasonable accommodations for pregnant employees under the ADA and the Pregnancy Discrimination Act. “Expecting Accommodations for Pregnant Employees?” Winter-2022-Client-Newsletter.pdf (foslaw.com). Under the facts presented, the court ruled that Walmart had a legitimate business reason, reducing its worker’s compensation exposure, to refuse light duty for pregnant employees when it did not do so for non-pregnant employees injured outside of the job. Employers will have to wait for regulations or court decisions explaining the impact, if any, of the PWFA on the court’s holding.
The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).
The PUMP Act, which became effective December 29, 2022, is designed to help nursing mothers in the workplace. It requires employers to give such an employee reasonable break times and specific spaces to express breast milk, as frequently as needed by such employee, for up to two years following the birth of the employee’s child or from the date which the employee begins providing breast milk for a nursing child.
This Act applies to employers that are subject to the Fair Labor Standards Act (“FLSA”). The FLSA applies to employers whose annual sales total $500,000 or more or who are engaged in interstate commerce. While the FLSA contains similar provisions for many employees, this Act covers employees exempted from these requirements under the FLSA and extends the time period for such break time requirements from one to two years.
The space allotted cannot be a bathroom and must be shielded from view and free from intrusion by coworkers and the public. A converted, temporary space is allowed if otherwise appropriate. Remote workers must be free from observation by any video system during such breaks.
An employee who works while expressing breast milk must be paid for that time. An employee who is not working must be completely relieved from employment duties.
Employers with fewer than 50 employees may be exempt from the PUMP Act, if compliance would cause the employer undue hardship, which the statute describes as significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business.
These new laws do not replace or preempt other federal, state, or local laws providing greater protections to employees.
Contact your FOS attorney to ensure that your employment policies and procedures comply with these new laws, as well as other laws governing the workplace.
Photo By (AP Photo/J. Scott Applewhite, File)