Recent Expanded Protections for Pregnant and Nursing Employees

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 Act) was enacted to support women in the workplace who are breastfeeding. 

Pregnancy Workers Fairness Act

The Pregnancy Workers Fairness Act (PWFA) applies to all public sector employers and private sector employers with 15 or more employees. The PWFA requires covered employers to 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.

Although the PWFA closely follows the language of the Americans with Disabilities Act (ADA), employers should note that a qualified employee under the PWFA does not need to 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 an employee or employee’s representative has communicated to the employer.

In addition to the requirement that employers engage in an interactive process with employees who have a known limitation, employers are also required to provide employees with a reasonable accommodation before requiring employees to take paid or unpaid leave.

Employers are prohibited from interfering with or retaliating against any individual’s use of the rights afforded by the Act. The PWFA permits a prevailing employee the following remedies: reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. The PWFA goes into effect on June 27, 2023.

Providing Urgent Maternal Protections for Nursing Mothers Act

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) expands workplace protections for lactating employees by requiring employers to provide all employees who are lactating with reasonable time and private space to express breast milk.  The PUMP Act expands upon the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child, to cover all employees.  

Employers with fewer than 50 employees may be exempt from complying if they can establish that doing so would impose an undue hardship causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. 

Before filing suit against an employer for not providing a private place for the employee to express milk, an affected employee must notify their employer of the alleged failure to provide a private area to pump. After receiving such notice, the employer has 10 days to remedy the situation.

The PUMP Act went into effect December 29, 2022. The same damages that are available under other provisions of the FLSA are available for violations of the PUMP Act, which include the payment of unpaid wages, reinstatement, back and front pay, and liquidated damages.