New Federal Laws Covering Pregnant and Nursing Workers - What Employers Need to Know

On December 29, 2022, President Biden signed into law the Fiscal Year 2023 Omnibus Spending Bill, which included two new laws  -- the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Both laws provide expanded protections for pregnant and nursing workers. 

Pregnant Workers Fairness Act

Effective June 27, 2023, the PWFA requires employers with at least 15 employees to provide reasonable accommodations to pregnant employees and job applicants with temporary physical or mental limitations due to pregnancy, childbirth or related conditions. 

Like the Americans with Disabilities Act (“ADA”), the PWFA requires employers to provide reasonable accommodations unless they would pose an undue hardship.  The PWFA also incorporates the ADA’s definitions of “reasonable accommodation” and “undue hardship.”   Further, the PWFA uses the ADA’s framework for the interactive process to determine a reasonable accommodation.  Pursuant to the PWFA, an employer cannot require an employee to take leave, either paid or unpaid, if another reasonable accommodation can be provided. 

While the ADA requires an employee to be able to perform the “essential functions” of their position, with our without accommodation, the PWFA temporarily excuses pregnant workers from the essential functions of their jobs in certain circumstances as a reasonable accommodation.  Specifically, employees and applicants may be excused from performing an essential job function if: (a) the inability to perform an essential function is temporary, (b) the essential function could be performed in the near future, and (c) the inability to perform the essential function cannot be reasonably accommodated. 

Previously, employers were only required to provide accommodations to pregnant workers in limited circumstances under the Pregnancy Discrimination Act, where an employee’s pregnancy, childbirth, or related medical condition rose to the level of a disability under the ADA or when accommodations were made for other similarly situated, but nonpregnant, workers. With the PWFA, employers’ obligations to provide accommodations to pregnant employees and applicants are clearer, and aligned with trends from many states that mandate accommodations for pregnant employees.

PUMP Act

The PUMP Act, effective December 29, 2022 (with the exception of certain changes regarding remedies), amends the Fair Labor Standards Act (“FLSA”) to provide employees with reasonable break time to express breast milk for a nursing child for one year after the child’s birth each time the employee has a need to express the milk.  Under the PUMP Act, employers are also required to provide a place, other than the bathroom, that is shielded from view and free from intrusion of coworkers and the public, in which an employee may express breast milk. 

While these protections were previously available to non-exempt employees, the PUMP Act provides these protections to all employees, regardless of exemption status. 

These breaks are not required to be paid.  However, if non-exempt workers are not completely relieved of their duties for the entire break period or if they express breast milk during an otherwise paid break period, then they must be paid for the entire break.  Exempt employees should not have their weekly salary reduced, regardless of whether they take breaks to express milk.

Certain employers are exempt from the PUMP Act, including employers with 50 employees or less, if compliance would cause undue hardship due to significant difficulty or expense.

While many employers may already have policies in place for providing accommodations for their employees and break time for nursing mothers, we encourage companies to reach out to their Seyfarth contact for solutions and recommendations for addressing compliance with applicable requirements.

Key Take Aways

Many employers may already include pregnancy as a disability covered under their disability accommodation policies and practices due to state law requirements, but it is important to review those policies and processes to account for the new federal law nuances, including the interactive process framework.  Additionally, employers should review their lactation policies to ensure they comply with the PUMP Act and cover employees in all states.