New Federal Laws Provide Expanded Protections for Pregnant and Nursing Workers

Pregnant Worker Fairness Act

The PWFA was enacted to "eliminate discrimination and promote women's health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition." While federal law already protects women affected by pregnancy against discrimination, the PWFA is the first federal law that explicitly provides pregnant workers with accommodations similar to, but more expansive than, the Americans with Disabilities Act ("ADA"). The law applies to employers who are covered by Title VII, meaning most employers with 15 or more employees. 

While the terms "reasonable accommodation" and "undue hardship" retain the same meaning as used in the ADA, the PWFA defines a "qualified employee" more expansively than the ADA. A "qualified employee" is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of a job. But unlike the ADA, the PWFA protects employees who are temporarily unable to perform an essential job function due to pregnancy, childbirth, or a related condition. Employers may be required temporarily to relieve pregnant employees of essential job duties if needed. 

Under the PWFA, it is an unlawful employment practice for a covered entity to:  

• Not make reasonable accommodations unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business;
• Require a qualified employee to accept an accommodation other than any reasonable accommodation through the interactive process;
• Deny employment opportunities if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy;
• Require qualified employees to take leave, whether paid or unpaid, if another reasonable accommodation can be provided; and
• Take adverse action against a qualified employee on the basis of the employee requesting or using a reasonable accommodation.

The definition of "known limitation" is broader than an ADA disability, and the PWFA defines "known limitations" as "physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or other related medical conditions that the employee has communicated to the employer." To trigger the reasonable accommodation protections of the PWFA, an employee must communicate to the employer that she is experiencing a known limitation. The PWFA may also apply to temporary conditions, mental conditions, and conditions taking place after pregnancy, such as post-partum depression, regardless of whether the condition meets the ADA's definition of "disability." The PWFA further protects employees from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.

An employer may have a defense to allegations that the employer engaged in unlawful employment practices by demonstrating good faith efforts to identify and make a reasonable accommodation, in consultation with the qualified employee, that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the employer's operation.

The PWFA incorporates Title VII's enforcement procedures and remedies. A charge must be filed with the Equal Employment Opportunity Commission before filing suit, and the Commission has authority to investigate and litigate claims for individual and class action claims. Like Title VII, an aggrieved individual can recover back pay, compensatory and punitive damages (subject to caps), front pay, attorney fees, and nonmonetary injunctive relief. 

Congress has tasked the Commission to issue regulations carrying out the Act, and those regulations shall provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions. Accordingly, employers should anticipate new regulations from the Commission. In the meantime, the Commission recently released a Q&A on the PWFA.  

Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act amends the Fair Labor Standards Act ("FLSA") by expanding requirements for breastfeeding accommodations in the workplace. Nearly all employers are subject to the requirements of the PUMP Act, with a few limited exceptions for employers with fewer than 50 employees unless they would suffer an undue hardship, and certain workers in the transportation industry.

The PUMP Act has two main requirements:  

• First, all covered employers must make a private location available to nursing mothers to express breast milk. The location cannot be a bathroom and must be shielded from view or free from intrusions. These rights apply to all employees, both exempt and non-exempt. 
• Second, employers must provide break time for nursing mothers to express breast milk. Employees are not entitled to compensation for lactation break time unless required by another federal, state, or local law, or unless the employee is not completely relieved from duty for the entirety of the break. 

With regard to remedies for violations of the PUMP Act, covered employees must first notify their employer if they believe they are not in compliance with the PUMP Act and provide the employer with a 10-day period to remedy the situation before an action for non-compliance may be commenced. The PUMP Act further clarifies that remedies available under the FLSA are also available for violations of the PUMP Act, including back and front pay, unpaid wages, reinstatement, and liquidated damages. The remedies provision does not take effect until April 28, 2023. For further reference, see the Department of Labor's Fact Sheet on FLSA Protections for Employees to Pump Breast Milk at Work.