Two New Laws Provide Expanded Rights to Pregnant, Postpartum and Pumping Women

As we celebrate International Women’s Day, it is a perfect time to update you about two new laws, passed by Congress and signed by President Biden that went into effect this past year. These new laws provide expanded protections to workers who are pregnant, postpartum or pumping: The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

The Pregnant Workers Fairness Act (PWFA)

Under the PWFA, employers with 15 or more employees are required to make “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”    The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the following: the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Under this new law, many of the accommodations a woman may need while pregnant must be provided without any medical information from the employee’s doctor. For instance, it is common knowledge that morning sickness, more frequent urination, and back pain are routine symptoms of pregnancy, and therefore  requests by the employee to accommodate these symptoms should be routinely granted.

A woman in need of an accommodation under the PWFA does not have to use any magic words to  request an accommodation under the statute. She can trigger the employer’s legal obligation through a communication that demonstrates that she needs an accommodation for a pregnancy-related limitation. For example, “I’m pregnant and having bad morning sickness, so I’m having trouble getting to the office on time” is sufficient to put the employer on notice of her need for a later start time for her workday. The employee need not make a specific accommodation request for as a later arrival time If an accommodation is clear and easy to provide, the employer is expected to provide it. If the request is unclear or the accommodation seems unreasonable or impossible, the employer and employee should engage in an interactive process to identify an accommodation that will meet the employee’s needs. It can be an informal conversation with both sides discussing various options, or it can be a more formal process.  At this point, an employer may ask for information from the employee’s physician.  An employer that does not provide an accommodation in a reasonable period of time leaves itself open to claims that it has denied an accommodation and/or has interfered with the employee’s exercise of its PWFA rights. 

Also, under the PWFA, covered employers cannot engage in the following acts:  

• Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfere with any individual’s rights under the PWFA.

The statute allows the employer to deny an accommodation to a pregnant woman, or a woman who had a miscarriage or one who is undergoing IVF, if providing it would cause an undue hardship.  An “undue hardship” is significant difficulty or expense for the employer.  To prove undue hardship, an employer must perform an individualized assessment of current circumstances that show an accommodation would cause significant difficulty or expense for the employer.  Factors that must be considered when determining undue hardship include:

The nature and cost of the accommodation needed;

The overall financial resources of the facility;

The number of employees at the facility;

The effect on expenses and resources of the facility;

The overall financial resources, size, number of employees, and, if applicable, the type and location of the employer’s overall facilities

The type of operation of the employer; and

The accommodation’s impact on the operation of the facility.

Additional factors must be considered if the adjustment needed is a temporary suspension of an essential job function, which the PWFA may require under certain circumstances. These additional factors include the length of time the individual will be unable to perform the essential function, the nature and frequency of the essential function and several other factors.

The PWFA applies only to accommodations. Existing laws, such as Title VII of the Civil Rights Act prohibits discrimination based on sex, and the Pregnancy Discrimination Act of 1978 amends Title VII to state specifically that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII.  These are the statutes that make it illegal to fire, or refuse to hire,  or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions.   The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.  The PWFA, like Title VII, is enforced by the Equal Employment Opportunity Commission (EEOC), and filing a charge of discrimination with the federal agency within 180 days of notice of the discriminatory act is a mandatory prerequisite for filing a lawsuit against an employer. 

The PUMP for Nursing Mothers Act

At the same time as the PWFA was enacted, on December 29, 2022, President Biden signed the Consolidated Appropriations Act 2023. The law includes the PUMP for Nursing Mothers Act (“PUMP Act”),  which gives certain rights to nursing mothers.  But this was not the first federal law to provide protections to  female employees who are breastfeeding.   Effective in March of 2010, the Fair Labor Standards Act (which sets rules regarding wages and working conditions) was amended, to require certain employers to provide reasonable break time and a private place other than a bathroom  that is shielded from view and free from intrusion from coworkers and the public, for certain hourly employees who are breastfeeding to express breast milk at work for up to a year after the birth of her child. The FLSA’s original Break Time for Nursing Mothers provision only applied to non-exempt employees working at establishments covered by the FLSA, meaning businesses that have an annual dollar volume from sales or business done of at least $500,000.  The law makes the break times granted unpaid. It also provides an “undue hardship” exemption for employers that employ fewer than 50 employees. An undue hardship will be found if the requirement imposes on the small employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. There is no private right of action granted under the  FLSA, meaning a woman could not file a lawsuit on her own.

The 2022 PUMP Act was passed to close some of the loopholes in the original 2010 FLSA law.  It expands the legal right to receive pumping breaks and private space to nearly all workers by including virtually all employers regardless of size.  The key exception applies to airline flight crew members and the law is not applicable to certain employees of common carriers for 3 more years.

The statute still provides that an employer that employs less than 50 employees shall not be subject to the requirements of the Act, if such requirements 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 employer’s business.

The PUMP Act allows an employee to file a lawsuit against an employer that violates the law and seek money damages.

The EEOC also oversees the PUMP Act, and its proposed regulations specifically require that employers provide nursing mothers with pumping areas on the job that are in a “reasonable proximity” to the employee’s usual work area. This area must be a private space free from intrusion and cannot be  a bathroom. The proposed regulations also indicate that lactation is a medical condition that can require a reasonable accommodation of providing a time and place to express breast milk beyond one year after the child’s birth as outlined in the PUMP Act. Further, the regulations clarify that pumping time counts as time worked when calculating minimum wage and overtime if an employee is not completely relieved from their work duties during the pumping break.

This information is not intended to be, and should not be construed as, legal advice for any particular fact situation. Feel free to contact us with specific questions. You can learn more about our products and services on this website or contact one of our attorneys, Jay Rollins or Debra Schwartz by calling  404.844.4130.