Extracted from Law360
On Dec. 29, 2022, President Joe Biden signed into law the Pregnant Workers Fairness Act, or PWFA, and the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act.
The laws expand the rights of pregnant, postpartum and nursing employees in the workplace, filling gaps left by other federal laws and placing additional obligations on employers.
Both the PWFA and the PUMP Act provide benefits to eligible workers that are different from and more generous than existing federal law. Below we provide insight into these differences between existing laws and the PWFA and PUMP Act, as well as guidance for employers on the implications of these new federal laws.
Pregnant Workers Fairness Act
Effective June 27, the PWFA requires employers with 15 or more employees to engage in an interactive process with pregnant and postpartum applicants and employees, and to make reasonable accommodations for any known limitations resulting from pregnancy, childbirth or a related medical condition unless the accommodations are an undue hardship on the employer.
The act prohibits employers from denying employment opportunities to qualified applicants and employees who request reasonable accommodations, and prohibits taking adverse employment actions against applicants and employees for requesting or using accommodations.
Employers are prohibited from retaliating against applicants and employees who oppose any act or practice made unlawful by the PWFA or because the applicants or employees filed a charge, or testified, assisted or participated in an investigation, proceeding or hearing under the PWFA.
The PWFA requires the U.S. Equal Employment Opportunity Commission, the agency responsible for enforcing the PWFA, to issue regulations by the end of 2023 that include examples of reasonable accommodations. Before the regulations become final, the EEOC will issue a proposed version so the public can offer comments. Although the EEOC has not issued regulations, it has provided examples of potential accommodations that could be available under the PWFA, including:
- Additional, longer or more flexible breaks to eat, drink, rest or use the restroom;
- Schedule flexibility, such as having shorter hours, part-time work or a later start time;
- Exemption from strenuous activities and/or exposure to chemicals not safe for pregnancy;
- Leave for medical appointments or to recover from childbirth;
- Updated food or drink policies, such as allowing workers to have a water bottle or food;
- Appropriately sized uniforms and safety apparel; and
- Closer parking.
How the PWFA Goes Beyond Current Federal Law
Prior to the PWFA's enactment, pregnant and postpartum applicants and employees could rely on the Pregnancy Discrimination Act, or PDA, or the Americans with Disabilities Act for workplace accommodations. Additionally, eligible employees could take unpaid, job-protected leave for qualifying reasons under the federal Family and Medical Leave Act.
When the PWFA becomes effective, it will be easier for pregnant and postpartum applicants and employees to seek and receive accommodations, including leaves of absence, for known limitations caused by their pregnancy, childbirth or a related medical condition.
Currently, Title VII prohibits discrimination based on sex, pregnancy and other protected characteristics. Under the PDA, which amended Title VII, there is no independent duty to accommodate pregnant employees. Instead, employers must only accommodate pregnant employees to the extent they accommodate others with similar abilities or inabilities to work.
The ADA only provides the right to a reasonable accommodation if an employee has a pregnancy-related condition that qualifies as a disability. Pregnancy-related conditions can constitute a disability if they amount to a physical or mental impairment that substantially limits one or more of the employee's major life activities. This means that, under the ADA, employers are not required to make accommodations for pregnancy unless there is some other condition that could qualify as a disability.
Under the FMLA, eligible employees who work for covered employers are entitled to take unpaid leave for a pregnancy or the birth of a child, including for prenatal care, incapacity due to pregnancy and a serious health condition after the birth of a child.
The protections the PWFA, PDA, ADA and FMLA afford employees are distinct in several key respects and demonstrate how the PWFA goes beyond current federal law.
First, the term "qualified employee" is more broadly defined in the PWFA than it is under the ADA.
Under the ADA, a qualified individual must be able to perform the essential functions of their position or the position they desire with or without reasonable accommodation.
Under the PWFA, an employee or applicant is considered qualified even if they are temporarily unable to perform an essential function, they could perform the essential function in the near future, and their inability to perform the essential function can be reasonably accommodated.
Second, the PWFA's scope is greater than the ADA's because the physical or mental condition for which an accommodation must be granted need not meet the ADA's definition of a disability and can include a "physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions."
For example, morning sickness, which would not be a disability under the ADA, could be a condition requiring an accommodation under the PWFA — absent undue hardship.
Third, unlike the PDA, the PWFA does not require a pregnant employee seeking an accommodation to identify employees with similar abilities or inabilities to work whom the employer has accommodated.
Fourth, the PWFA requires employers to accommodate qualified employees with a known limitation due to pregnancy, childbirth or related medical conditions, meaning a physical or mental condition that the employee or the employee's representative has conveyed to the employer.
An employer cannot assume that a pregnant or postpartum employee needs an accommodation simply because they are pregnant or recently gave birth. The PWFA prohibits requiring a qualified employee to accept an accommodation other than one identified in the interactive process.
Fifth, the PWFA expressly provides that an employer must not require an employee to take paid or unpaid leave if another reasonable accommodation can be provided to accommodate the employee's known limitations. This requirement appears to encourage employers to consider and provide accommodations that will enable qualified employees to continue working.
Sixth, although the FMLA allows eligible employees to take unpaid leave for reasons associated with a pregnancy or the birth of a child, it does not require covered employers to offer employees accommodations like modifications to the work environment or relief from physically taxing activities or duties.
Seventh, employees who are not eligible to take leave under the FMLA may qualify for leave as a reasonable accommodation under the PWFA.
For all these reasons, more pregnant and postpartum employees will qualify for reasonable accommodations than they previously would have been eligible for under the ADA, PDA or FMLA.
Implications of the PWFA
The PWFA is significant for both employees and employers.
By expanding the right to reasonable accommodations for pregnancy, childbirth and related medical conditions, the PWFA closes a gap in federal law that left pregnant and postpartum workers without remedy if they needed accommodations but did not qualify for a reasonable accommodation under existing federal law.
By broadening the scope of protections, the PWFA gives pregnant and postpartum applicants and employees the opportunity to continue working and providing financially for their families during and after pregnancy when they previously may have had to resign or take leave from work.
The potential impact of enabling pregnant and postpartum applicants and employees to continue working to meet their increased expenses after the arrival of a new baby may be significant. The PWFA is likely to have a greater impact on low-wage earners, employees in positions requiring physical exertion, and employees with less-flexible jobs.
As the PWFA's effective date approaches, employers should update their policies and accommodation request forms and train human resources and management personnel to ensure they are prepared to consider and administer accommodations under the new law.
These employees should be trained to recognize and respond to an accommodation request even if the employee does not expressly reference the PWFA or reasonable accommodation, and they should not assume that all pregnant and postpartum employees need an accommodation. Now is also an opportune time to provide anti-harassment, anti-discrimination and anti-retaliation training to all employees.
The PWFA will set employer requirements for pregnant or postpartum applicants or employees requesting an accommodation, but the law's significance will vary by state, depending on whether state law provides greater protections to pregnant and postpartum applicants and employees or applies to employers with fewer than 15 employees.
After the PWFA takes effect, employers should be prepared for EEOC charges and private lawsuits from employees alleging violations of the new law.
If liability is found in a failure-to-accommodate claim, employers can avoid the imposition of damages if they demonstrate that they engaged in good faith efforts to identify and make a reasonable accommodation that provided an equally effective opportunity to the employee without causing an undue hardship for the employer. That defense cannot be used if liability is found in a retaliation claim.
Employers should work closely with their human resources and management personnel to determine practical accommodations they can provide to pregnant and postpartum applicants and employees that will enable them to continue working during and after pregnancy.
Employers should also ensure compliance with the PWFA as well as applicable state laws, which may go beyond what the new federal law requires.
PUMP Act
The PUMP Act amended the Fair Labor Standards Act to require employers to provide nonexempt and exempt employees a reasonable break time and private space to express breast milk for up to one year after a child's birth. The reasonable break time must be provided each time an employee needs to express milk.
The PUMP Act requires that the lactation space is not a bathroom and is shielded from view and free from the intrusion of co-workers and the public. Employers are not required to compensate nonexempt employees for their reasonable break time unless otherwise required by law or the employees are not completely relieved from duty during their break.
Employees classified as exempt under the FLSA, however, may not have their salaries reduced for taking breaks under the PUMP Act.
Importantly, employers with fewer than 50 employees nationwide may be exempt from the law's requirements if they can demonstrate that compliance would impose an undue hardship.
Under the PUMP Act, employees may file a complaint with the Wage and Hour Division of the U.S. Department of Labor, the agency responsible for enforcing the act, or they may file a private cause of action in court.
If an employer has not provided adequate space to pump, employees must notify their employer, and the employer has 10 days to comply before an employee can file a lawsuit. The notice period, however, does not apply before an employee can file a complaint alleging violations of the act's protections with the WHD or when an employee brings a private suit to enforce the law's reasonable break time requirement.
An employee is not required to provide this notice if the employee has been fired for requesting break time or space to pump or for opposing an employer's conduct under the PUMP Act. The notice is also not required when the employer has refused to provide the required space to pump.
On May 17, the WHD issued a field assistance bulletin to provide PUMP Act guidance to its field staff. The FAB includes examples of a reasonable break time, compensation and retaliation under the law.
In the bulletin, the WHD notes that a one-size-fits-all approach will not successfully accommodate nursing employees. Instead, the frequency, duration and timing of breaks will vary based on factors unique to each employee and child, and factors such as the location of the space and specific pumping setup. While an employer and employee can create a break schedule, the WHD explains, the schedule cannot be static, and the employer cannot deny an employee a break to pump.
The WHD notes if an employer provides paid rest breaks, an employee may use the time to express breast milk and must be compensated the same as other employees for the breaks.
The bulletin acknowledges that employers may address lactation space requirements in different ways. However, it suggests the use of locking doors or signage indicating the space is occupied.
While the PUMP Act does not specify what features are required in a lactation space, the WHD explains that the location must be "functional as a space for pumping" and contain "a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump."
In addition, employees must be able to store milk at work, and the WHD recommends that the space provide electricity and be close to a sink.
The PUMP Act includes an exemption for small employers. The WHD states small employers bear the burden of proving that compliance would be an undue hardship, which is determined on an individual employee basis.
The bulletin clarifies that "[b]ecause the law requires only space and time for unpaid breaks for one year after a child's birth, and the employer must be able to demonstrate 'significant' difficulty or expense, employers will be exempt only in limited circumstances."
Like many employment laws, the FLSA prohibits retaliation against employees who have engaged in protected activity, including requesting break time or space to pump. The FAB notes employers cannot hold time an employee took for pump breaks against them for quotas or require employees to work additional hours to make up for the time missed due to pump breaks.
The WHD also published an updated minimum wage poster on employees' rights under the FLSA that includes information on the PUMP Act. Employers should ensure they have posted the April 2023 version.
The WHD considers electronic posting sufficient if all the company's employees work remotely, all employees customarily receive information from the employer by electronic means, and all employees have readily available access to the posting at all times.
In the May bulletin, the WHD highlights that the PUMP Act applies to remote employees. The WHD's Fact Sheet #73 further explains that remote employees "must also be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform."
How the PUMP Act Goes Beyond Current Federal Law
In 2010, the Affordable Care Act, pursuant to the Break Time for Nursing Mothers Act, amended the FLSA to require employers to provide nonexempt nursing employees with reasonable break time and a private space other than a bathroom to express breast milk for one year after a child's birth.
The Break Time for Nursing Mothers Act, however, only applied to nonexempt employees. In other words, employees who were not entitled to overtime pay were excluded from the law's breastfeeding protections.
The PUMP Act amends the FLSA to expand coverage of the protections for expressing breast milk at work to nearly all employees covered by the FLSA, regardless of whether they are exempt from minimum wage and overtime requirements.
An estimated 9 million additional employees, mostly salaried, are now covered by the PUMP Act. Airline pilots and flight attendants are not covered under the PUMP Act, and the law's effective date for certain employees of rail carriers and motorcoach employers is extended until Dec. 29, 2025.
Implications of the PUMP Act
The PUMP Act's applicability to millions of employees who were not covered by the FLSA's earlier protections for nursing employees has the potential to enable nursing parents to continue breastfeeding for longer than they otherwise would have without the expanded applicability of break time and space requirements, and to provide covered employees with greater recourse against their employers for violating the law.
The law's enforcement provision went into effect on April 28, giving employees the right to file a lawsuit and recover monetary remedies for retaliation and violations of the reasonable break time and space requirements.
Prior to April 28, remedies for violations of the FLSA's break time and space requirements were limited to unpaid minimum or overtime wages, but employees who experienced retaliation could seek additional remedies.
Now, the following remedies are available even if an employee has not experienced retaliation:
- Employment;
- Reinstatement;
- Promotion;
- Payment of lost wages and an equal amount in liquidated damages;
- Compensatory damages and make-whole relief; and
- Punitive damages where appropriate.
Employers should update their workplace policies and ensure management employees and human resources professionals are trained on the PUMP Act's requirements, including how to respond if an employee alleges the employer has failed to provide an adequate space to pump.
The policies should advise employees of the employer's commitment to providing employees with both time and space to pump throughout the day, explain whether the breaks for nonexempt employees are paid or unpaid, note the location of and amenities available in the lactation room, and specify how employees can schedule pump breaks and reserve and access the lactation space.
Employers that have not yet designated a lactation space compliant with the law should do so and promote its purpose to employees. Employers must ensure there is ample space so that an employee can access a lactation space any time they need it, even if there are other lactating employees at the same location.
The PUMP Act sets the federal requirements for employers' lactation break and space obligations, but there are laws in some states that exceed the PUMP Act's requirements. The PUMP Act does not preempt state or local laws offering employees greater protections.
Employers should ensure compliance with the PUMP Act as well as applicable state laws that may go beyond what the new federal law requires.