On December 29, 2022, President Biden announced that through two new laws, the Pregnant Workers Fairness Act (PWFA) and the Act on Providing Emergency Maternal Protection for Lactating Mothers (PUMP) and signed a comprehensive appropriations bill, including expanded protections for employees who are breastfeeding. .
New reasonable accommodation requirements
Since the Pregnancy Discrimination Act (PDA) amended Title VII in 1978, pregnancy discrimination in employment has been illegal under federal law. However, unlike the PWFA, the PDA language does not mandate any particular consideration. Reflecting existing laws in many states, PWFA expands protections for employees (and applicants) who require accommodation to perform their duties due to pregnancy, childbirth, or related medical conditions. To do.
PWFA requires employers with 15 or more employees to provide “reasonable accommodation” for “qualifying employees” affected by pregnancy, childbirth, or related medical conditions . Eligible employees include employees and applicants who are able to perform the essential functions of the job with or without reasonable accommodation.
Under the PWFA, the following are illegal employment practices:
- Refuse to provide reasonable accommodation unless it imposes undue hardship on the operation of the business.
- Require employees to accept accommodations other than reasonable accommodations that are reached through the dialogue process with the employer.
- Refusal of an employee’s employment opportunity when the reason for refusal is based on a need for reasonable accommodation.
- Requiring employees to take paid or unpaid leave if another reasonable accommodation is provided to enable the employee to continue working.Also
- Taking unfavorable employment measures against an employee because the employee has requested or used a reasonable accommodation.
In other words, PWFA encourages employers to consider disability-related accommodation requests under the Americans with Disabilities Act (ADA) in the same way that employees and employees related to pregnancy, childbirth, or related medical conditions. Requesting consideration of the applicant’s accommodation request. Employers may also place eligible employees on leave when another reasonable accommodation option is available, and retaliate against eligible employees for seeking or obtaining reasonable accommodation. Forbidden. PWFA requirements take effect immediately. EEOC guidance is coming soon.
New requirements for nursing mothers
Since 2010, the Federal Fair Labor Standards Act (FLSA) has required employers to provide reasonable rest breaks and non-toilet private spaces for non-exempt employees to express breast milk during working hours. is obliged to provide The new PUMP Act has expanded the requirements to include both exempt and non-exempt employees. Unless the employee is relieved of all duties during milking, such breaks must be paid. As before, employers must continue to provide breastfeeding employees with a place other than the bathroom. This area is protected from view and intrusive from colleagues and members of the public, allowing breast milk to be expressed.
The PUMP Act provides for a private cause of action, but before making a claim against the employer, the employee must first notify the employer of the failure to provide such a location. . Employers have up to 10 days to comply with the required accommodations.
In other words, the Pump Act makes several changes to the current standards, including:
- Provide all eligible employees, including teachers and nurses, with the right to rest and space to express breast milk.
- Allow workers to sue and seek financial remedies if their employer fails to comply.When
- Clarify that milking time must be paid if the employee is not completely relieved of their duties.
Employers with fewer than 50 employees may be exempt from these requirements if they can demonstrate that the requirements impose an undue burden on their business. In addition, airline crews and certain railroad employees are exempt from her PUMP law.
Both the PWFA and PUMP laws preempt state or local laws that provide stronger employee protections.
What this means for employers
While the PWFA and PUMP laws significantly expand employee rights under federal employment law, many states have already expanded their pregnancy considerations laws. Employers should review and update their current maternity accommodation policies to ensure frontline supervisors and managers are trained on how to properly respond to employee requests for assistance. there is. If you have any questions about the new Her PWFA or PUMP laws, or need help updating your policies and practices, we encourage you to contact an experienced labor and employment attorney.