Expanded Federal Protections for Pregnant and Nursing Employees

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Key Takeaways

  • Employers with 15 or more employees must provide pregnant employees with reasonable accommodations for limitations or medical conditions related to pregnancy or childbirth.
  • All employers must provide lactating employees with paid time and space to express breastmilk; there is an undue hardship exception for employers with fewer than 50 employees.
  • Violations under both laws can result in a minimum of reinstatement of the employee, back pay, front pay, and additional damages.

Discussion

Congress passed a pair of pregnant and nursing worker protections in the omnibus spending bill. The Pregnant Workers Fairness Act (PWFA) goes into effect June 27, 2023. Employers with fifteen or more employees must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions. Similar to the Americans with Disabilities Act (ADA), employers must engage in the interactive process with eligible employees or applicants to determine a reasonable accommodation. Employers cannot require an eligible employee to take paid or unpaid leave if another reasonable accommodation is available. Like the ADA, employers do not have to provide an accommodation if it causes an undue hardship. Employees whose rights are violated or are retaliated against under the PWFA have the right to reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. The Equal Employment Opportunity Commission (EEOC) is expected to issue regulations with examples of reasonable accommodations.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) goes into effect April 28, 2023. The PUMP Act applies to all employers but employers with fewer than 50 employees can request an exemption if compliance would cause an undue hardship. Crewmembers of air carriers, train crews, and motorcoach services operators are also exempt. The PUMP Act expands employer obligations to provide time and space to express breastmilk. All employees, whether exempt or non-exempt, must be given time to express breastmilk and a private place to do so which is not a bathroom. Any time spent expressing breastmilk while working is considered to be hours worked. Prior to filing a claim for a violation of their rights, an employee must notify their employer of the alleged failure to provide a private area. The employer then has ten days to correct the situation. This notice period is waived if the employee was terminated in retaliation for making the request. Violations of the PUMP Act include payment of unpaid wages, reinstatement, back pay, front pay, and liquidated damages.

Both the PWFA and PUMP Act expand upon existing rights under the ADA, Pregnancy Discrimination Act, and the Fair Labor Standards Act. Employers will need to look at their existing policies regarding pregnant and nursing employees and make changes as necessary.

Action Items

  1. Review the PWFA and the PUMP Act.
  2. Review and update policies.
  3. Review work locations and make changes for compliant lactation rooms.
  4. Train appropriate personnel on updated requirements.
  5. Consult with legal counsel prior to making adverse actions against pregnant and nursing employees.

Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase