While the final days of 2022 may have been quiet for some, Congress pushed forward a significant win for pregnant and nursing workers, thanks to two pieces of legislation included in the federal Consolidated Appropriations Act, 2023: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
Federal legislation regarding pregnancy, childbirth, related medical conditions, and breastfeeding is not new—the Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act of 1964 (Title VII), prohibits discrimination on the bases of pregnancy, childbirth, and related medical conditions, and a 2010 amendment to the Fair Labor Standards Act (FLSA) requires rest breaks and space for certain lactating workers. However, because courts have narrowly interpreted employers’ accommodation obligations under the PDA and the 2010 amendment to the FLSA applies only to non-exempt employees, the new obligations codified in the PWFA and the PUMP Act are markedly more specific and robust.
Many states and localities have enacted pregnancy accommodation laws and lactation accommodation (and policy) requirements, so these laws and requirements should be read in connection with the PWFA and the PUMP Act. Both the PWFA and the PUMP Act explicitly do not preempt state laws or municipal ordinances that provide greater protections. As such, it is vital that employers take steps now to understand the new laws and additional obligations they may have in certain states and localities.
Understanding the PWFA
Under the PWFA, covered entities must provide reasonable accommodations to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions (“Qualified Workers”), unless doing so would impose an undue hardship. Modeled in part on the Americans with Disabilities Act (ADA), the PWFA also requires employers to engage in an interactive process to identify and implement such accommodations. The PWFA relies on the ADA’s definitions of “reasonable accommodation,” “undue hardship,” and “interactive process.”
In addition to these affirmative requirements, the PWFA prohibits covered entities from doing any of the following:
- requiring Qualified Workers to accept an accommodation other than those identified during the interactive process;
- requiring Qualified Workers to take leave (paid or unpaid) if another reasonable accommodation is available;
- denying employment to Qualified Workers because of their need for a reasonable accommodation;
- taking adverse action against Qualified Workers in “terms, conditions, or privileges of employment” because the individual requested or used a reasonable accommodation;
- retaliating against individuals who exercise their rights or participate in an investigation under the PWFA; and
- coercing, intimidating, threatening, or interfering with employees’ exercise or enjoyment of rights under the PWFA.
Who Is a Covered Entity?
The PWFA broadly applies to entities that qualify as “respondents” under Title VII. In the private sector, this means employers with 15 or more employees.
Who Is Entitled to Accommodation?
Only those individuals who are Qualified Workers are entitled to accommodation under the PWFA. Qualified Workers must be both “qualified employees” and have a “known limitation” regarding pregnancy, childbirth, or a related medical condition.
Like the ADA, the PWFA defines a “qualified employee” as an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of their job. However, the PWFA explicitly provides that if an individual is temporarily unable to perform an essential function, the person is still “qualified” if they will be able to perform the function again in the near future and a reasonable accommodation is otherwise available.
The PWFA defines a “known limitation” as any physical or mental condition “related to, affected by, or arising out of” pregnancy, childbirth, or related medical conditions that the employee, applicant, or their representative communicates to the employer. Importantly, the PWFA makes clear that such a condition need not qualify as a “disability” under the ADA to trigger coverage under the PWFA.
What Remedies Are Available for Violation of the PWFA?
For private employers, the remedies available under the PWFA generally align with those available under Title VII, including, but not limited to, back pay, front pay, compensatory damages, punitive damages, and (where appropriate) reinstatement and promotion.
When Does the PWFA Go into Effect?
Although the U.S. Equal Employment Opportunity Commission (EEOC) has until December 29, 2023, to publish enforcement regulations for the PWFA, employers will nonetheless have to comply with the PWFA beginning on June 27, 2023.
Understanding the PUMP Act
The PUMP Act amends the FLSA to provide that, unless an employer is specifically exempted under the law, the employer must provide:
- a reasonable break time to employees (exempt and non-exempt) to express breast milk during the one year after the birth of the employee’s child (this break may be unpaid provided that the employee is completely relieved from their duties during such time and federal, state, or local law does not otherwise require compensation), and
- a private place (other than a bathroom) for employees to express breast milk (the place must be shielded from view and free from intrusion from co-workers and the public).
Which Employers Are Exempt from the PUMP Act?
The PUMP Act identifies the following four categories of employers that, under certain circumstances, may be exempt from providing the required lactation accommodation break time and space:
- Small Employers: Like the 2010 amendment to the FLSA, employers with fewer than 50 employees are exempt from the PUMP Act if compliance would impose an undue hardship by causing significant difficulty or expense. In determining whether such a hardship exists, the PUMP Act provides that the employer’s size, financial resources, nature, or structure of business should be considered.
- Air Carriers: Air carriers are exempt from this law with respect to crewmembers.
- Rail Carriers: Rail carriers are exempt from this law with respect to certain train crew if complying with the PUMP Act would require the employer to incur “significant expense” or result in certain unsafe conditions. Importantly, if the rail carrier is not exempt, the PUMP Act also outlines certain additional obligations for such employers regarding employees’ right to temporarily obscure recording devices while using the lactation accommodation space.
- Motorcoach Services Operators: Motorcoach services operators are exempt from this law with respect to certain employees “involved in the movement of a motorcoach” if compliance would require the employer to incur “significant expense” or result in certain unsafe conditions.
What Remedies Are Available for Violation of the PUMP Act?
Violation of the PUMP Act is considered a violation of the FLSA. Both legal and equitable remedies are available for such violations, including, but not limited to, lost wages, liquidated damages, and (where appropriate) reinstatement and promotion.
Importantly, unlike other FLSA violations, before an employee may pursue a claim for failure to provide the appropriate lactation accommodation space, the employee must notify the employer of the violation and provide the employer with 10 days to cure. This notice and cure period is not required when an employer indicates that it does not intend to provide the required nursing space or when the employee is discharged for (i) requesting a nursing break or space or (ii) opposing the employer’s conduct regarding the same.
When Does the PUMP Act Go into Effect?
The PUMP Act’s obligation for private employers to provide a lactation space and break times to all employees (including exempt employees) went into effect immediately upon President Biden’s signing of the law on December 29, 2022; however, the PUMP Act’s amendments to the FLSA’s penalties provisions will not become effective until April 28, 2023.
What Employers Should Do Now
To comply with the PWFA’s and the PUMP Act’s requirements, covered employers should do the following:
- Review and revise, as needed, relevant policies and practices, including policies related to accommodations (such as lactation), leaves of absence, and rests/breaks. In conducting this review, be mindful that several state and local laws also require employers to provide different or greater accommodations than those outlined in the PWFA and the PUMP Act. Because neither the PWFA nor the PUMP Act preempts these laws, consider all applicable federal, state, and local laws when reviewing and revising relevant policies.
- Train supervisors and human resources personnel on any changes made to relevant policies and practices.
- Prepare a communication plan for sharing any changes made to relevant policies and practices with employees.
- Assess workspaces and arrange for any renovations or other changes that are needed to comply with the PUMP Act’s lactation accommodation space requirement.
- Monitor the EEOC’s website for enforcement guidance regarding the PWFA.
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|Nancy Gunzenhauser Popper|