Federal Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act
Barsamian & Moody
January 9, 2022
President Biden has signed the Consolidated Appropriations Act of 2023 which included two acts providing federal employment protections to mothers. The Pregnant Workers Fairness Act (PWFA) goes into effect June 27, 2023 and requires employers to provide reasonable accommodations to pregnant employees as long as it does not impose an undue hardship. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) went into effect December 29, 2022 and requires employers to provide employees with reasonable break time to express breast milk with some limitations. If you are thinking these laws sound familiar, it is because California already requires the protections guaranteed under PWFA and PUMP. However, with the enactment of these federal requirements employers will now have state and federal agencies (EEOC and DOL) investigating claims and issuing citations for violations so compliance will be even more critical, and employers will have to comply with these requirements in their non-California operations.
PWFA applies to employers with 15 or more employees. Covered employers are obligated to provide a reasonable accommodation to employees and applicants based on known limitations regarding their ability to perform essential job duties due to a physical or mental condition related to pregnancy, childbirth and related medical conditions. Employers cannot require an employee take paid or unpaid leave if a reasonable accommodation is available. Thus, employers must engage in the interactive process to determine if a reasonable accommodation is available. The terms “reasonable accommodation” and “undue hardship” have the same meaning as under the ADA.
PUMP expands the Federal Labor Standards Act (FLSA) and its previous protections enacted through the Affordable Care Act such as privacy for pumping and break time for non-exempt employees only. PUMP applies to all employees, not just nonexempt employees. Employers with 50 or fewer employees may be able to rely on a small employer exemption under limited circumstances. Employers must provide employees with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The law requires an employee to provide their employer with notice of any alleged violation of this law and allow the employer 10 days to cure the violation before filing a lawsuit unless: (1) the employee has been discharged for requesting lactation break time or space or for opposing employer conduct which violated this law; or (2) the employer has indicated that it has no intention of providing a lactation space. Also of note is the fact that the remedies available under the FLSA for violation of PUMP do not take effect until April 28, 2023.
What This Means for Employers:
Employers who have operations outside of California or who do not already include pregnancy and lactation protections in their policies and employee handbook should be sure to update their policies for compliance. Employers should also ensure that supervisors are aware of the need to direct all accommodation requests to the human resources or other appropriate department immediately so that the interactive process may begin.
The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.