Pregnant and Nursing Workers Benefit From Expanded Employment Protections

On December 29, 2022, as part of the Fiscal Year 2023 Omnibus Spending Bill, President Biden signed into law two pieces of legislation that will benefit pregnant and nursing mothers—the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). The new legislation expands protections for pregnant and nursing employees in the workplace, with the goal of putting an end to the inconsistent patchwork of case law and state and local legislation governing employers’ treatment of such employees relative to their conditions. 

The PWFA incorporates certain concepts under the Americans with Disabilities Act (ADA), such as the obligation to provide reasonable accommodations, but expanded to situations involving pregnancy, childbirth, and related medical conditions. The PUMP for Nursing Mothers Act amends the Fair Labor Standards Act, expanding upon existing rules that require employers to designate time and space for nursing employees to pump breastmilk during the work day. 

Pregnant Workers Fairness Act

Under the U.S. Supreme Court’s interpretation of the Pregnancy Discrimination Act in Young v. UPS, employers are required to make accommodations for pregnant employees only to the extent that comparable accommodations were made available to employees (such as injured or disabled employees) with similar limitations in their ability or inability to work. The lack of pregnancy-comparable conditions led to inconsistency in the interpretation of the law. In addition, it is estimated that this inconsistency has led to dismissal of as many as two-thirds of lawsuits involving pregnancy-related accommodations. 

Now, the PWFA mandates that employers provide reasonable accommodations and other protections to pregnant workers even in the absence of an underlying disability. Employers generally must extend these protections to both employees and job applicants—so long as the individual is able, or in the near future will be able, to perform the essential functions of the employment position. In other words, an individual is considered a “qualified employee” even if, for a temporary period, they are unable to perform an essential function of the job, and the essential function could be performed in the “near future.” Neither “temporary” nor “near future” are defined terms. 

Specifically, the PWFA requires that employers with 15 or more employees provide the following protections to pregnant employees and job applicants with physical or mental conditions affected by or arising out of pregnancy, childbirth, or related medical conditions:

• Reasonable accommodations. Employers must make reasonable accommodations for employees and applicants who disclose physical or mental conditions that are affected by or that arise out of pregnancy, childbirth, or related medical conditions. As is the case under the ADA, there is an exception for employers that can demonstrate such accommodations would result in undue hardship to the operation of the business. 
• Interactive process. Accommodations must be arrived at under the same interactive process that is the foundation of compliance under the ADA. This process involves cooperation between the employee or applicant, the health care provider, and the employer in order to understand the nature of the individual’s condition and the limitations that may affect the individual’s ability to perform the essential job duties.
• Employment opportunities. Employers cannot deny employment opportunities to a pregnant worker due to the need for reasonable accommodation.
• No requirement to take leave of absence. Employers must offer a reasonable accommodation other than taking a leave of absence (paid or unpaid), if one exists.
• No adverse effect on employment privileges. Pregnant workers must enjoy the same terms, conditions, and privileges of employment that such individuals would have experienced had they not needed, or even requested, a reasonable accommodation.
• Prohibition against retaliation. Employers may not retaliate against an individual in the exercise or enjoyment of rights (or in the aiding and abetting of another individual’s exercise of rights) under the PWFA, or discriminate against an employee for opposing any act rendered illegal by the PWFA.

Remedies under the PWFA are the same as those under Title VII of the Civil Rights Act, which include injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. Individuals can file charges with the Equal Employment Opportunity Commission (EEOC) and/or state and local agencies for investigation.

The PWFA goes into effect on June 27, 2023 (180 days after it was signed into law). The EEOC is directed to issue regulations under the PWFA within one year. 

PUMP for Nursing Mothers Act

When the Affordable Care Act was enacted in 2010, it included amendments to the Fair Labor Standards Act (FLSA) that required employers to provide hourly employees reasonable break time to express breast milk for one year after childbirth, as well as a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public to do so. An exemption exists for employers with fewer than 50 employees who can demonstrate that compliance would result in an undue hardship, and exceptions apply to flight attendants, pilots, and rail employees.

The PUMP for Nursing Mothers Act replaces the prior FLSA amendments and expands the law in the following ways:

• Accommodations for all lactating employees. Employers must now provide the aforementioned break time and place for all lactating employees, whether hourly or salaried.
• Compensation for partial relief of duties. Break time does not count as hours worked unless the employee is not completely relieved of duty during the break.
• Remedial notice requirement. The PUMP for Nursing Mothers Act adds a requirement for employees seeking to recover for the employer’s failure to provide the appropriate place for nursing: The employee must provide notice to the employer and 10 days to cure before commencing an action against the employer. This notice requirement does not apply to an employee who was terminated for requesting an employer’s compliance, or when an employer has indicated it will not comply.
• Expansion of remedies. The PUMP for Nursing Mothers Act expands existing remedies for nursing employees by making available all remedies under the FLSA. Such remedies include unpaid wages, reinstatement, and liquidated damages.

The access provisions of the PUMP for Nursing Mothers Act took effect upon enactment on December 29, 2022, whereas the remedies provisions will take effect 120 days after enactment or on April 28, 2023.

Employer Action Points

Employers should take action to ensure compliance with both the PWFA and the PUMP for Nursing Mothers Act. Most importantly, employers should review their policies that govern the reasonable accommodations they provide to employees generally, as well as the time and place provided for lactating employees in light of the expanded protections provided by the new legislation.

Employers that have designed their reasonable accommodation policies and procedures to comply with the ADA, or with state or local law whose standards fall short of the new legislation, should consider revising these policies to apply to the expanded scope of accommodation issues under the PWFA. For example, revisions might address, among other issues, the expansion of the class of individuals entitled to reasonable accommodations due to pregnancy, childbirth, or related medical conditions, including pregnant workers whose inability to perform essential job functions is only temporary, and alternative accommodations that may be preferable to a leave of absence. 

In addition, employers should revise existing lactation policies to account for the amendments to existing law provided by the PUMP for Nursing Mothers Act, including the coverage of salaried employees and the new provisions regarding remedies. Employers should address how to respond to an employee’s notice of noncompliance quickly in light of the short, 10-day cure period.

Further, employers should be prepared to address agency guidance mandated under the PWFA. The EEOC’s implementing regulations will provide additional rules regarding compliance and specific examples of reasonable accommodations for pregnant workers. They will not require employer-sponsored health plans to cover any particular item or treatment as a reasonable accommodation.

Finally, employers should remember that state and local jurisdictions may still require greater protections for pregnant and/or lactating employees than those provided under federal law. The PWFA and PUMP for Nursing Mothers Act set forth minimum standards for compliance and do not preempt applicable state or local law.

The attorneys of Ballard Spahr’s Labor and Employment Group help employers successfully manage their workforces to optimize productivity and employee loyalty in the face of unprecedented challenges in today’s employment environment. We advise on policies and regulatory compliance, provide training that helps avoid issues, and defend against claims should they arise.

In addition, our Employee Benefits and Executive Compensation Group assists a variety of clients with a wide range of needs, enabling us to develop a broad practice with strength across the many areas of benefits-related legal compliance. Our group includes a world-class health care practice focused on the continually changing legal landscape of health benefit plans.

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