Nancy Gunzenhauser Popper, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Washington Business Journal, in “What Employers Need to Know About the PUMP Act and the PWFA Included in the $1.7T Omnibus Package,” by Andy Medici. (Read the full version – subscription required.)
Following is an excerpt:
The recently passed $1.7 trillion federal omnibus funding legislation also contains new protections for pregnant and lactating workers — and attorneys say business owners need to ensure they are on the right side of the law.
Portions of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) made it into the final omnibus bill, and they expand the protections those workers should receive. The PWFA extends the Americans with Disabilities Act to cover pregnant workers, which means businesses with 15 or more employees must provide reasonable accommodations to pregnant workers. …
Key requirements under the Pregnant Workers Fairness Act …
Accommodations could also include chairs or stools for sitting when workers might normally stand or more frequent bathroom breaks, for example.
Nancy Gunzenhauser Popper, attorney at Epstein Becker Green, said while disabilities associated with pregnancy, such as gestational diabetes, previously counted as disabilities, pregnancy itself was not. And now pregnancy itself is covered.
A guiding principal for business owners looking to accommodate pregnant workers is whether the accommodation takes away a core function of the job. If a job requires lifting 30-pound boxes, and the worker can't do it, that could be considered an accommodation that falls outside of being reasonable.
However, business owners should see if that worker could instead transfer, temporarily or otherwise, to a different job at the company if one is open. Ultimately, each case has to be considered on its own merits.
“Because you are looking at each individual's facts and circumstances, it truly is a case-by-case analysis,” Gunzenhauser Popper said. “It's not something that an employer could have a list of things and say, ‘We would never grant this’ — that would not be appropriate.”
What does the PUMP Act mean for businesses? …
The PUMP Act also requires a private space for workers to pump breast milk that is private and shielded from view — and it cannot be a bathroom. That could mean a lock on the door and signage outside — although the space does not have to be permanently used for pumping breast milk.
Some other best practices to consider, according to Gunzenhauser Popper, is whether the space has a flat surface for the pump and an electrical outlet. Does the space have a fridge to store the breast milk if needed?
“Although not explicitly required by the PUMP Act, it's a good time for employers to examine their spaces and their facilities to understand what is the space we can provide if someone asks for lactation accommodation and what we would be able to provide,” Gunzenhauser Popper. “It does not have to be a dedicated space that always exists. It could be converting some other space.”
