There are two (2) federal laws that take effect this year: the PUMP (Providing Urgent Maternal Protections for Nursing Mothers) Act and the Pregnant Workers Fairness Act (“PWFA”). The legislation highlights and recommendations are provided below.
Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act
This federal law became effective on April 28, 2023. The law applies to employers with fifty (50) or more employees and is an amendment to the Break Time for Nursing Mothers Act, which broadens the Fair Labor Standards Act (FLSA) to include employer obligations to lactating employees. Please note that employers with fewer than 50 employees are not required to comply with the Act if the requirements pose an undue hardship by causing significant difficulty or expense, including factors such as the size of the employer, financial resources, nature, and structure.
The law requires employers to provide a reasonable break period for workers nursing a child up to one year after the child’s birth. This Act covers both salaried and non-exempt workers, and covered employers are required to provide a private space (excluding bathrooms) where employees can express breast milk. Finally, the Act explains that employers are not required to compensate employees receiving breaks, unless employees are still on the clock, or if employees are not completely relieved of their job duties.
For more information, please visit https://www.dol.gov/agencies/whd/pump-at-work.
Pregnant Workers Fairness Act (“PWFA”)
This federal law becomes effective on June 27, 2023. The law applies to public and private employers with fifteen (15) or more employees. The law mandates these employers provide reasonable accommodations to pregnant workers. Note that the law applies only to accommodations, not discrimination. The PWFA analysis will be similar to the Americans with Disabilities Act (and amendments) – under the law, employees and applicants may seek a reasonable accommodation for temporary limitations related to pregnancy, childbirth, and medical conditions unless the accommodations impose an undue hardship upon the employer. Undue hardship is defined as a significant difficulty or expense for the employer. Note that the ADA protects pregnancy/childbirth conditions that cause it to be a disability. The PWFA does not require a pregnant person to have a condition or disability – the law makes pregnancy itself a protected class. The PWFA is broader than the ADA.
The EEOC defines the following as examples of reasonable accommodations: ability to sit or drink water; receive closer parking; have flexible hours; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; etc.
For the PWFA to apply, the allegation(s) in the charge must have occurred on or after June 27, 2023. If the situation occurs beforehand, a pregnant worker seeking accommodation may be successful under another federal or state law (Title VII, ADA, FMLA).
The Equal Employment Opportunity Commission (EEOC) will enforce the PWFA, making it unlawful for employers to:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
For additional information regarding this law, please visit https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
Considering these new federal laws, TMI recommends employers do the following:
- Train HR and supervisors on both laws;
- Update accommodation policies and processes (interactive process) to specifically reference pregnant employees and the PFWA and PUMP Act; and
- If applicable, update severance agreement release language to specifically reference the PFWA and PUMP Act.
TMI is ready to assist you with these and all other HR matters.