Rachel Lerner
Thu, 01/26/2023
Recently, Congress passed two laws expanding protections for pregnant workers and pregnancy-related conditions. The Pregnant Workers Fairness Act expands protections for reasonable accommodations related to pregnancy and the Providing Urgent Maternal Protections for Nursing Mothers expands coverage which require employers to provide breaks for breastfeeding employees.
Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) is one of two laws that Congress recently passed addressing accommodations for pregnant and recently pregnant employees. President Biden signed the Act into law on December 29, 2022, and it will go into effect on June 27, 2023.
Under the PWFA, employers with 15 or more workers will be required to grant temporary and reasonable accommodations to pregnant workers. The PWFA will also prohibit employers from discriminating or taking an adverse employment action based on a need for a pregnancy-related accommodation.
Until PWFA becomes effective, the only requirements regarding pregnancy discrimination are in the Pregnancy Discrimination Act (PDA), which prohibits employers from making adverse employment decisions based on pregnancy. However, under the PDA, a pregnant employee can only receive a reasonable accommodation for their pregnancy if their employer granted them to other workers. The PWFA expands these protections, requiring pregnancy-related reasonable accommodations to be provided, such as light duty or more frequent breaks. Further, such reasonable accommodations must be provided even if the employee cannot perform all essential functions of the job, as long as the limitation is temporary.
The PWFA will be enforced by the Equal Employment Opportunity Commission and the United States Attorney General’s Office as it pertains to private sector employees. Claims by federal government employees are enforced by the EEOC as well. The EEOC is required to issue regulations to carry out the PWFA within two years.
PUMP Act
The second pregnancy related bill, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) provides workplace protections for employees who are breastfeeding and need to express breast milk. Prior to the passage of the PUMP Act, the only federal protections regarding breastfeeding came from the Fair Labor Standards Act (FLSA). Under the FLSA, employers were required to provide nursing employees with a reasonable break period to express break milk during the first year after the child’s birth. However, only employees who were covered under the FLSA overtime provisions were afforded these protections.
Under the PUMP Act, every employer must provide breastfeeding employees with time and space to express breast milk, in a place other than a restroom, that is private and shielded from view. This greatly expands the number of individuals with such protections, as jobs like teaching and nursing are generally exempt from the FLSA overtime laws, and therefore, were not afforded the breastfeeding protections under the FLSA. Furthermore, the PUMP Act provides for protections for two-years, rather than the one-year under the FLSA. Under the PUMP Act, such breaks must be paid unless the employee is completely relieved from duty for the entirety of the break.
However, the PUMP Act eases requirements on rail and motor coach operators, and exempts air carriers from having to provide accommodations. Transportation providers are excluded from needing to make changes that would require a significant expense, such as adding crew members or adding unscheduled stops. Companies also are not required to retrofit or modify their vehicles but should install a curtain or screen to create a private area.
Within 60 days of enactment, the Secretary of Labor is directed to issue guidance with respect to employers to comply with the PUMP Act. The PUMP Act is enforced through the remedies provided in the Fair Labor Standards Act. Before an employee can bring an action to recover liability for a violation of the PUMP Act, they must inform their employer of the failure to comply.
State Laws
In addition to the new federal laws, states have varying levels of protection for pregnant employees, including requiring reasonable accommodations and breastfeeding breaks. At least thirty states plus the District of Columbia have adopted legislation or executive orders granting pregnant employees the right to accommodations at work. Additionally, at least twenty states plus the District of Columbia have legislation regarding providing breaks to express breast milk, although the majority of the state laws in place do not require that such breaks be paid. Some states, including Maine and New York, have also extended protections for breastfeeding breaks for up to three years, which is more than the PUMP Act provides.
If you believe your employer has failed to accommodate your pregnancy, contact MSE at info@mselaborlaw.com.
