On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023, and formally adopted two new laws aimed at enhancing protections for pregnant employees and nursing parents in the workplace. The Pregnant Workers Fairness Act (the "PWFA") requires covered employers to provide a reasonable accommodation to qualified applicants and employees with known limitations due to pregnancy, childbirth, or related medical conditions. The Providing Urgent Maternal Protections for Nursing Mothers Act (the "PUMP Act") expands on existing protections for employees who need time at work to express breast milk. In light of the obligations imposed by these two new laws, employers should review their current policies concerning reasonable accommodations and rest breaks for pregnant or nursing employees. Employers should also ensure that they comply with applicable state and local laws, which in many cases place additional requirements on employers with regard to pregnant or nursing employees.
The PWFA formally goes into effect on June 7, 2023 and requires employers with 15 or more employees to reasonably accommodate otherwise qualified job applicants or employees with known physical or mental limitations due to pregnancy, childbirth, or related conditions.
Prior to the PWFA, under federal law, employers were only required to provide an accommodation to pregnant employees when the employee's pregnancy, childbirth, or related medical condition resulted in a disability, or when such accommodations were made to similarly situated nonpregnant employees. Thus, the PWFA expands employers' obligation to reasonably accommodate pregnant employees beyond those more limited circumstances. It also creates a separate framework for responding to requests for accommodation, which mirrors the federal Americans with Disabilities Act ("ADA") in various aspects.
Indeed, similar to the ADA, employers now must engage in an interactive process with pregnant employees to determine if the employee is entitled to a reasonable accommodation under the PWFA and what accommodation may be reasonable under the circumstances. Examples of possible reasonable accommodations include light duty assignments, more frequent breaks, modified work schedules, temporary transfers, or leave. Though an employee is not entitled to any particular reasonable accommodation, the PWFA prohibits requiring an employee to take a paid or unpaid leave of absence as a reasonable accommodation if any other alternative is available. Additionally, much like under the ADA, employers are exempt from the requirement to reasonably accommodate a pregnant employee if doing so would impose an undue hardship on the employer's business.
Yet, unlike the ADA, which only requires employers to provide a reasonable accommodation if the pregnant employee's medical condition is a disability within the meaning of the ADA, the PWFA is not so limited. The PWFA also requires employers to provide a reasonable accommodation to employees who are unable to perform the essential functions of their position, provided such inability is temporary.
The PUMP Act
The PUMP Act largely went into effect on December 29, 2023, and builds upon employers' obligations under the Fair Labor Standards Act and the Affordable Care Act to provide employees with unpaid break time to express breast milk. Specifically, the PUMP Act extends the protections previously afforded to non-exempt employees to all employees, including those classified as exempt and non-exempt.
The break time afforded to employees under the PUMP Act may still be unpaid, unless otherwise required by federal, state, or local law. However, it is important to note that exempt employees' salaries cannot be reduced for this break time. Additionally, non-exempt employees who are not completely relieved of duty for the entire break period or who otherwise elect to use paid break periods already provided by their employers must be paid.
There is a limited exemption under the PUMP Act for smaller employers with fewer than 50 employees. Those employers are required to comply, unless doing so would impose an undue hardship because of significant difficulty or expense.
An employee generally has a private cause of action to file suit under either the PWFA or PUMP Act. However, the PUMP Act requires an employee to follow a particular administrative procedure prior to doing so. Thus, to file suit under the PUMP Act, an employee must bring an alleged violation to their employer's attention and give the employer the opportunity to cure. If the employer fails to correct the alleged violation after a 10-day period, the employee may proceed with filing suit.
Beyond these procedures, the Department of Labor is expected to release, in the coming months, additional guidance concerning how the PWFA and PUMP Act will ultimately be enforced.
State and Local Laws
Aside from these changes at the federal level, various states and localities have recently adopted similar or more expansive protections for pregnant or nursing employees. In fact, many state and local laws address providing a lactation accommodation to employees, with many requiring the employer to supply the employee with a room or other private location for the expression of breast milk that meets specific criteria. Some state and local laws also proscribe particular procedures that must be followed when responding to an employee's request for a lactation accommodation and impose employer policy requirements.
For instance, under New York law, employers are required to have a written lactation accommodation policy in place that informs employees of their right to a lactation room in close proximity to their work area that is well lit, shielded from view, and free from intrusion from others; that specifies the procedures by which employees may request this lactation room; and that requires employers to respond to any request for this lactation room or other accommodation within five business days. The lactation room provided must also include a chair, a working surface, and nearby access to clean running water, and the employee must be given access to refrigeration to store breast milk.
Key Takeaways for Employers
If employers do not currently have reasonable accommodation and/or lactation accommodation policies in place for pregnant or nursing workers, they should strongly consider developing such policies in writing in accordance with federal, state, and local law. To the extent employers currently have such policies in place, they should review their existing policies for continued compliance with applicable federal, state, and local law as well.
Employers should also ensure that all managers and supervisory personnel are aware of new legal obligations in this area and trained on how to handle pregnancy or lactation accommodation requests. Often managers or supervisors may receive an initial request for accommodation, which should be forwarded in a timely manner to Human Resources, so that the request may be addressed appropriately under the circumstances.
Employers with questions regarding the recent legal developments addressed in this article, or who would like assistance reviewing employee handbooks, are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group.