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Alerts and Updates

2023 Brings Expanded Protections for Pregnant and Nursing Employees

January 10, 2023

2023 Brings Expanded Protections for Pregnant and Nursing Employees

January 10, 2023

Read below

Most, but not all, employers are covered by the PUMP for Nursing Mothers Act. 

The last few weeks of December 2022 saw a flurry of activity in Washington, D.C., as Congress pushed to pass a spending bill to continue funding the federal government. With some fanfare, the final, bipartisan omnibus bill was signed into law by President Biden on December 29, 2022.

Employers focused on their own year-end activities may have missed two amendments tucked within the spending bill that directly impact operations and employees: the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act) and the Pregnant Workers Fairness Act (PWFA).

The PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act expands existing protections under the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time to an employee to express breast milk for the employee’s nursing child for a period of one year after the child’s birth. Employers are also required to provide a place for employees to use to express milk, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.

Building upon existing protections created when the Patient Protection and Affordable Care Act amended the FLSA to provide nonexempt employees with reasonable breaks and a location, other than a bathroom, to express milk, the PUMP for Nursing Mothers Act now expands these protections to all employees, not just nonexempt employees, with only some limited industry exemptions.

The PUMP for Nursing Mothers Act amendment to the FLSA went into effect immediately on December 29, 2022, with the signing of the omnibus spending bill. However, the enforcement remedies provision provides for a 120-day delay and will not be effective until April 28, 2023.

Most, but not all, employers are covered by the PUMP for Nursing Mothers Act. An employer with 50 or fewer employees may rely on the small employer exemption to avoid compliance where doing so would impose an undue hardship by causing significant difficulty or expenses when considered in relation to the size, financial resources, nature or structure of the employer’s business.

A few categories of employees in certain industries will not benefit from the law’s protections. Crewmembers of air carriers are exempt from the act. Rail carriers and motorcoach service operators are covered employers under the act, but certain positions are exempt where compliance would require significant employer expense or result in unsafe conditions, among other factors, and the effective date is delayed by three years for such positions.

Steps Employers Should Take to Implement the PUMP for Nursing Mothers Act

  • Human resources departments, managers and supervisors need to be educated on the act to ensure that employees are not improperly denied breaks and a proper space to express milk. While employees have a responsibility to provide their employer with notice and a 10-day opportunity to cure a violation of failing to provide a proper space to express milk, relying on notice period carries with it legal and cultural risk. Employees are not required to provide such notice where the employee has been discharged because the employee made a request for break time or a proper place to express milk or otherwise opposed their employer’s conduct under the act or where the employer indicates it does not intend to provide a proper place to express milk.
  • Employers must provide breaks under the act as often as the employee has need to express milk. Employers must carefully consider whether these breaks must be paid. The act provides that these breaks are unpaid unless required to be paid under federal, state and local law. However, the act also confirms that break time will count as compensable hours worked unless the employee is completely relieved of all duties during the entirety of the break. Thus, exempt employees must still be paid their full, weekly salary for any workweek in which they perform any work and nonexempt employees may need to be paid for their breaks, depending on the length of the break and whether they performed any work during the time in which they expressed milk. Employers must consider state and local law when reaching a determination as to whether these breaks are paid.
  • The act does not supersede more generous state and local laws, such as New York state’s law, which provides breastfeeding mothers the right to pump milk at work for up to three years after giving birth, and California’s law, which permits breaks for as long as the employee is nursing her child. For employee relations reasons, employers, particularly those operating in multiple jurisdictions, may wish to consider permitting breaks for a longer period of time than required under the act.
  • Employers should revisit their existing practices with respect to the place(s) being made available to employees to express milk. Realistically, providing a space “other than a bathroom” may be operationally challenging for employers with offices or store locations open to the public. The absence of any requirement under the act for a walled office with a locked door allows employers some flexibility to create compliant, temporary spaces with, for example, privacy screens. However, given the personal and intimate nature of expressing milk, employers must consider the significant privacy concerns and be prepared, at a minimum, to post clear privacy notices to ensure that the location is free from view and intrusion from co-workers and the public. Notably, many employers must provide other enhancements to the place being made available to express milk pursuant to state and local law. For example, New York City law imposes additional requirements with respect to proximity to employee work location, lighting, access to electricity and a refrigerator and a chair, among other requirements.
  • Employers should circulate to employees an updated accommodations policy addressing employees’ entitlement to take breaks to express milk, the process to request taking those breaks and identifying the location(s) where these breaks may be taken.

Protections and Accommodations for Employees Under the Pregnant Workers Fairness Act

The omnibus spending bill also contains the Pregnant Workers Fairness Act (PWFA), which will go into effect on June 27, 2023. This amendment requires private employers with 15 or more employees to provide accommodations for employees (including applicants) who have medical conditions related to pregnancy and childbirth, even when those individuals are not disabled.

More specifically, the PWFA contains sweeping nondiscrimination protections for a “qualified employee” who, with or without a reasonable accommodation, can perform the essential functions of their position. Under the PWFA, the following are considered unlawful employment practices by a covered employer with respect to such qualified employees:

  • Not making reasonable accommodation to the known limitations related to pregnancy, childbirth or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business operation;
  • Requiring a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation derived through the interactive process;
  • Denying employment opportunities to a qualified employee based on the need to make reasonable accommodations to such qualified employee related to pregnancy, childbirth or a related medical condition;
  • Requiring a qualified employee to take paid or unpaid leave where another reasonable accommodation is available and can be provided to address the known limitations related to pregnancy, childbirth or related medical condition; and
  • Taking adverse action with respect to the terms, conditions or privileges of employment against a qualified individual who requests such reasonable accommodation.

Notably, the PWFA is not the only source of federal protection for pregnant employees. Until now, federal protections for pregnant individuals rested within the Pregnancy Discrimination Act (PDA), which prohibits discrimination against individuals based on pregnancy or related medical conditions. However, the PDA does not guarantee that employers will be required to provide accommodations for such conditions. The United States Supreme Court’s 2015 decision in Young v. UPS, finding that the Pregnancy Discrimination Act “requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work,” has left open the possibility in many situations that an employer is not obligated to accommodate a pregnant employee. The Americans with Disabilities Act (ADA) also does not provide pregnant employees with entitlement to accommodations unless the employee has a pregnancy-related impairment that qualifies as a disability under the ADA.

The PWFA addresses this gap in federal law by requiring employers to provide reasonable accommodations for medical conditions related to childbirth and pregnancy through an interactive process aligned with requirements under the ADA, even where the medical condition does not rise to the level of a disability. The PWFA now aligns with certain state and local laws (such as the NYC Human Rights Law) that already provided protections beyond the ADA and require accommodations for pregnancy, childbirth and related medical conditions, even in the absence of a disability. Congress directed the EEOC to issue regulations within one year and to include within those regulations examples of reasonable accommodations.

Steps Employers Should Take to Implement the PWFA

  • Employers should circulate to employees an updated accommodations policy that goes beyond accommodations for disabilities and religion. The policy should specifically provide for accommodations for pregnancy, childbirth and related medical conditions, even when the employee is not disabled. The policy should also specifically inform employees on how to request accommodations and that accommodation requests are subject to the interactive process and will not be available if they constitute an undue hardship.
  • Employers should educate managers and supervisors on obligations under the PWFA―in particular, how they should respond to employee accommodation requests and how they should engage in the interactive process with human resources and the employee (and the employee’s healthcare provider) to determine whether requested accommodations are reasonable or constitute an undue hardship. Although managers and supervisors may have a preference as to what type of accommodation to provide, the PWFA is clear that an employer may not require an employee to take leave, for example, in lieu of providing a reasonable accommodation. Employers must remember to consider existing state and local law in assessing what accommodations must be offered and whether there is an undue hardship exception.
  • Employers should modify their nonretaliation policies to include a prohibition on retaliation related to employees exercising their right to request accommodations for pregnancy, childbirth and related medical reasons.

For More Information

If you have any questions about this Alert or have specific questions and concerns related to your operations, please contact Linda B. Hollinshead, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.