The Pregnant Workers Fairness Act (PWFA), passed in December, became effective on June 27, 2023 and applies to all government employees and all private employers that have 15 or more employees. Employees can qualify whether their status is full-time, part-time, temporary, and/or seasonal. The law also extends to job applicants.

At the end of 2022, Congress passed the new law that provides workplace accommodation and protections to pregnant employees and nursing mothers. Existing laws such as the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA) provide protections and reaffirm rights for pregnant and post-pregnant employees.

The new PWFA requires employers to provide reasonable accommodation for pregnancy, childbirth, and related medical conditions unless the accommodation presents an undue hardship for the employer to provide. Notably, the accommodations do NOT require the employee to be disabled, which is a requirement for accommodations under the ADA.

Some of the conditions that may qualify for accommodation are pregnancy complications that limit physical activity such as lifting and standing, pregnancy related sickness, and post-pregnancy conditions such as lactation and recovery complications from childbirth.

Qualifying employees may request reasonable accommodations such as:

  • Light duty, including lifting weight restrictions until post-pregnancy recovery is complete.
  • Extra breaks to accommodate bathroom needs, nutrition and hydration needs, and rest.
  • Making sure that dress codes allow for maternity and post-pregnancy clothing. If PPE is needed but cannot be found to accommodate the employee, then custom PPE or a temporary assignment for the worker until PPE will once again be available.
  • Flexible start and end scheduling to allow for doctor appointments before or after work, or a flexible lunch schedule to attend mid-day appointments.
  • Limited or suspended work travel schedules.

Importantly, employers cannot force a qualifying employee to accept an accommodation. For instance, the fact of a pregnancy cannot be enough to move a pregnant employee to a light duty assignment or not attend a work event that requires travel.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Rights for nursing mothers were also passed at the end of December and became effective immediately. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was part of the Omnibus Budget bill for 2023 that was passed on the very last days of the 117th Congress. Nursing mothers have had rights to breastfeeding accommodations since 2010 when the Break Time for Nursing Mothers Act (BTNMA) was passed, so the PUMP Act, which expanded the existing law, became effective immediately on December 29, 2022. However, enforcement provisions of the law became effective on April 28, 2023.

The original nursing law was made part of the Fair Labor Standards Act, and consequently, the provisions only applied to workers that qualified for overtime (OT). The PUMP Act fixes that by extending break time and nursing rights to nearly all employees who express breast milk. Qualifying employees maintain rights under the PUMP Act for one year after the birth of the child.

Break time for expressing breast milk does not have to be compensated unless it is taken as a regular, compensated break. Also, if the employee is not fully-relieved of duty during the break, then the break must be compensated.

The PUMP Act covers all employees that are qualified under the FLSA, which applies to employers with that have 50 or more employees. Employers with fewer than 50 employees must also comply with the PUMP Act unless they can demonstrate that compliance with the PUMP Act will present an undue hardship for the business.

Under the PUMP Act, Employers must provide a space for the employee to express milk, and that space can be a permanent or temporary location. In all circumstances, however, the space must be shielded from view and free from any chance of intrusion by other employees or the public. The space does not have to be dedicated solely to nursing mothers, but when an employee needs to express breast milk, the space must be prioritized for that purpose at the time when the employee needs to use it. The law specifically prohibits using a bathroom as the space for expressing breast milk.

The PUMP Act also provided employees the right to file a lawsuit against their employers immediately if the provisions of the PUMP Act are not followed, recourse that previously was not available under the earlier FLSA provisions. The law also provides a cause of action for retaliation for requesting or exercising rights under the PUMP Act.

The Department of Labor Wage & Hour Division have release new guidance reflecting the rights and responsibilities of employees and employers under the PUMP Act, which can be found here: DOL WHD Fact Sheet #73.

In this article Adriane Harrison, PRINTING United Alliance VP of Human Relations Consulting, addresses the new laws for pregnant and nursing workers. More information about employment laws and regulations can be found at Center for Human Resources Support or reach out to Adriane Harrison should you have additional questions specific to how these issues may affect your business.