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NEW EMPLOYMENT LAW ALERT: EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES

January 5, 2023 Posted in Legal Updates Share

Significant expansions of workplace rights for pregnant and postpartum employees were just signed into law. These changes likely impact your workplace. We recommend employers update employee handbooks to reflect this new policy. Here is what employers need to know. 

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (“PWFA”), requiring covered employers to provide reasonable accommodations to qualified employees with a known physical or mental condition related to pregnancy or childbirth. Additionally, legislation titled Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP for Nursing Mothers Act” or “PUMP Act”), was enacted related to breastfeeding in the workplace.  

PWFA – Effective June 27, 2023, the PWFA ensures that public sector employers, and private sector employers with 15 or more employees, provide a reasonable accommodation to qualified pregnant or postpartum employees with a known limitation, unless doing so would impose an undue hardship on the employer. Employers should engage in an interactive dialogue with the employee when accommodation is requested. Failure to make a reasonable accommodation to a person with a known limitation could result in liability.

While the PWFA is closely modeled after the Americans with Disabilities Act (“ADA”), employers should note that a qualified employee need not meet the definition of “disability” under the ADA. Instead, the PWFA uses the term “known limitation.”

A “known limitation” is defined as a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer, whether or not the condition meets the definition of a disability under the ADA. This may result in greater application of accommodation to employee limitations.

The PWFA prohibits employers from:

• requiring acceptance of an accommodation other than that which was arrived at through the interactive process,
• denying employment opportunities based on the need to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee,
• requiring leave, whether paid or unpaid, if another reasonable accommodation can be provided, and
• taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the request for or use of a reasonable accommodation,
• retaliating against employees for opposing any act or practice made unlawful by the Act or participating in an investigation, proceeding, or hearing, and
• coercing, intimidating, threatening, or interfering with any individual in the enjoyment or used of, or aiding another in the enjoyment or use of, rights afforded or protected by the Act.

The PWFA permits a prevailing employee to recover back wages, compensatory damages, attorneys’ fees, and other relief.

PUMP Act – The PUMP Act extends to all nursing employees rights to receive break time to express breast milk, and a private place to do so. While the Affordable Care Act already required some of these actions, those protections did not apply to most salaried, exempt employees, as defined under the Fair Labor Standards Act (“FLSA”).

The PUMP Act amends FLSA and extends rights to all breastfeeding employees for the first year after the baby’s birth. This includes:

• reasonable break time for an employee to express breast milk for the employee’s nursing child,
• a place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and the public, which may be used by an employee to express breast milk.

Employers are not required to compensate employees during this time unless otherwise required by federal, state, or local law, and unless the employee is completely relieved from duty during the entirety of the break.

There are some limited industry exemptions.

There is also an exemption for small employers with fewer than 50 employees if compliance would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business.

With some exceptions, the law requires an employee to provide notice to an employer and a ten-day opportunity to cure prior to commencement of an action. Employers that violate the law may be liable for reinstatement, promotion, or the payment of lost wages and liquidated damages.

The amendment to the FLSA inserting this new provision became effective December 29, 2022. The provisions clarifying remedies for violations of the PUMP Act under the FLSA will become effective on April 23, 2023.

 If you have questions about the application of these new laws to your business or need assistance updating your workplace policies, please contact our office at your convenience.