The New Year rings in new pregnancy rights for employees: What employers need to know

As part of the omnibus spending bill, Congress signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act) on December 29, 2022. These two pieces of federal legislation expand and clarify the rights and accommodations of pregnant and nursing employees in the workplace. 

The Pregnant Workers Fairness Act (PWFA)

The PWFA takes effect June 27, 2023. It applies to employers with 15 or more employees and will require employers to provide reasonable accommodations to employees and applicants for known limitations related to pregnancy, childbirth and related medical conditions unless the accommodation would cause an undue hardship for the employer.  The PWFA was modeled after the Americans with Disabilities Act (ADA); as such, the accommodation process will largely mirror the process under the ADA for individuals with disabilities, including the requirement to arrive at an accommodation through an interactive process with the employee. Unlike the ADA, however, accommodations under the PWFA are likely to be temporary, so they will arguably be easier to implement and potentially make it harder for employers to claim undue hardship. 

Finally, the PWFA contains an anti-retaliation provision, which prohibits employers from discriminating against an employee because such employee has opposed any act or practice made unlawful by the PWFA or because the employee made a charge, testified, assisted or participated in any manner in an investigation under the PWFA. It also contains a prohibition against coercion, intimidation, threats or interference with employees’ exercise or enjoyment of any right under the PWFA. Specifically for state employers, the PWFA also expressly waives the right to Eleventh Amendment immunity.    

The Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act)

Unlike the PWFA, the PUMP Act became effective immediately on December 29, 2022. The PUMP Act is an amendment to the Fair Labor Standards Act of 1938 (FLSA) and requires employers to provide reasonable breaks for an employee to express breast milk for one year after the child’s birth and to provide a location other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, to express breast milk. Employers with fewer than 50 employees are not subject to the PUMP Act if doing so would pose an undue hardship based on the employer’s size, financial resources, nature or business structure.   

Prior to the passage of the PUMP Act, lactation breaks were already required pursuant to language in the Affordable Care Act, but the lactation break requirement only applied to non-exempt employees. Under the PUMP Act, employers are now required to extend these protections to exempt employees as well, with limited exceptions such as air carrier crewmembers and particular employees of motor coach services and rail carrier operators.

Under the PUMP Act, employers are not required to compensate an employee for the reasonable break time to express breast milk unless otherwise required by federal, state or municipal law or if the employee is not completely relieved from duty during the entirety of such break. However, nonexempt employees will still be paid for a lactation break if they are using otherwise paid break time to do so, while exempt employees must generally be paid their same fixed salary regardless of whether they take a lactation break.  

Under the PUMP Act, employees may have a private cause of action if they notify the employer of failure to comply with the Act and provide the employer with ten days after such notification to come into compliance unless the employee has been discharged for having requested a lactation break or opposing any related employer conduct. As with the FLSA, damages for violations may include reinstatement, back and front pay and liquidated damages. 

What does this mean for employers? 

Employers should consider the ramifications of these two new laws and should conduct a review of employment policies. Accommodation policies and lactation break policies may need to be revised. Further, employers should ensure that their HR teams, managers and supervisors are trained on the new legal requirements as well as the employer’s policies and procedures. Finally, if an employer has not provided harassment and discrimination training to employees recently, now may be an opportune time to consider this.