Congress Expands Pregnant and Nursing Worker Protections in the New Year

By Jennifer R. Yee and Delilah R. Cassidy

Congress worked overtime over the holidays to pass the robust 2023 omnibus spending bill and avoid a government shutdown. Among its provisions are two significant acts related to workplace rights for pregnant and nursing employees: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act. These two acts take patchwork protections from decades of piecemeal state and federal legislation, fill in the gaps, and make clear what is required of employers with respect to pregnant and nursing employees.

The PWFA: Reasonable Accommodations for Pregnant Employees
While pregnant workers were federally protected from discrimination under the Pregnancy Discrimination Act, employers only needed to provide accommodations to the extent they provided the same to non-pregnant employees of similar ability. This proved difficult for unique pregnancy-related accommodations such as the need for additional bathroom breaks.

The PWFA links this unique need to the workplace right by requiring employers with 15 or more employees to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or a related medical condition. Modeled after the Americans with Disabilities Act, the PWFA utilizes the same definition of reasonable accommodation and similarly excepts employers from providing accommodations that would result in undue hardship on the business. The Equal Employment Opportunity Commission (“EEOC”) is tasked with issuing regulations with examples of such reasonable accommodations.

Upon receiving an accommodation request from a pregnant worker, covered employers now must engage in the interactive process. The PWFA prohibits requiring pregnant workers to take leave if another reasonable accommodation is available. If an employee makes a request for or receives an accommodation, they are also protected from retaliation in connection with that protected activity.

To recover for a violation of the PWFA, an employee must first exhaust administrative remedies by filing a charge with the EEOC. The PWFA will become effective on June 27, 2023.

The PUMP Act: Time and Space to Nurse for More Employees
 Congress amended the Fair Labor Standards Act ("FLSA") in 2010 to require employers with 50 or more employees to provide non-exempt employees with time and a private space to pump breast milk for one year after the birth of their child. The legislation left exempt employees—commonly teachers, nurses, other “white collar” professionals, and farmworkers—on the outside.

The newly enacted and immediately effective PUMP Act expands that protection to all employees under the FLSA capturing an estimated nine million additional workers. The PUMP Act does not always entitle the employee to receive pay during the time spent expressing breast milk unless they are still on the clock or simultaneously performing their job.

In several ways, Congress reduced the apparent burden on employers. First, it maintained the hardship exemption for small businesses that employ fewer than 50 employees. Second, it relaxed the PUMP Act requirements for rail and motorcoach operators and exempted air carriers altogether. Finally, as a precondition to filing a complaint with the Department of Labor, Congress obligated an affected employee to notify their employer of its non-compliance and give the employer 10 days to remedy the problem. Should an employer terminate a notifying employee in retaliation, however, the 10-day notice period is waived.

While the PUMP Act’s expanded access provisions became effective immediately, the law’s remedies provisions become effective on April 28, 2023.

Key Employer Takeaways
Given the existing regulations in this area, many employers already have policies and procedures related to pregnant and nursing workers. However, the PWFA and PUMP Acts nonetheless impact employers across the country, and all employers should consider reviewing their policies and practices to ensure they are in compliance.

Additionally, both state law and municipal ordinances may provide greater workplace protections to pregnant and nursing employees, and thus employers should consider consulting with legal counsel if they have questions about additional requirements applicable to their workforce based on their location.