As we forge ahead into the second half of this year, it is critical for employers to remain informed and to adapt in the face of ever-evolving employment laws. Two significant changes relate to pregnant workers’ and nursing mothers’ protections and rights in the workplace.
Pregnant Workers Fairness Act (PWFA)
The PWFA went into effect on June 27, 2023. The PWFA requires covered employers to provide reasonable accommodations to employees with known limitations related to childbirth, pregnancy, or other related medical conditions unless the accommodations would cause undue hardship to the employer.
Employers subject to requirements of the PWFA would include any of the following:
- Private and public sector employers who employ at least 15 workers
- Employment agencies
- Federal agencies
- Labor organizations
It is important to note that the PWFA only applies to accommodations; it is still illegal to fire or discriminate against workers based on childbirth, pregnancy, or other related medical conditions under Title VII. Other laws and protections that may apply to these workers include the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
What is a reasonable accommodation?
Congress has provided a few examples of reasonable accommodations that could be provided under the PWFA, as listed below. This list may not be all-inclusive, and reasonable accommodations should be explored on a case-by-case basis with the employee:
- The ability to sit or drink water
- Closer parking arrangements
- Flexible hours
- Appropriately sized uniforms and safety apparel
- Additional break time to use the bathroom, eat, and rest
- Leave or time off to recover from childbirth
- Excusing an employee from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy
Additional PWFA Protections
The PWFA incorporates some concepts from the ADA, such as using the interactive process and good-faith discussions to explore/identify reasonable accommodations. The PWFA also has additional requirements related to retaliation and interference with employee rights. The Equal Employment Opportunity Commission (EEOC) has advised that covered employers cannot:
- Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfere with any individual’s rights under the PWFA.
Penalties for violations and non-compliance
The PWFA is enforced by the EEOC. Penalties may vary depending on the section(s) of the act an employee is covered under and generally include remedies such as payment of damages, costs, and fees.
Other considerations for employers
- The enactment of the PWFA created updates to the EEOC “Know Your Rights” poster to include information about PWFA protections. Employers are required to display the new notice (dated 6/27/2023) that includes this information in all locations.
- While the PWFA does provide protections for workers with limitations due to childbirth, pregnancy, or other related medical conditions, it does not replace other federal, state, or local laws that are more protective. Several states and cities have laws that provide accommodations for pregnant workers, protection from pregnancy discrimination, and workplace breastfeeding rights.
- Policies related to pregnancy and accommodations should be reviewed and updated to ensure they comply with the PWFA, and training should be provided to employees who may handle accommodation requests.
Providing Urgent Maternal Protections for Nursing Mother Act (PUMP Act)
The PUMP Act was included as part of the Consolidated Appropriations Act 2023, which became law on December 29, 2022. The PUMP Act requires employers to provide nursing employees with reasonable break time and a private space to pump breast milk as needed for up to one year after the child’s birth.
Which employees are covered?
Nearly all employees covered under the Fair Labor Standards Act (FLSA) are covered under the PUMP Act. However, the protections do not cover all employees and some employees are protected starting at a later time. Exemptions are included for certain employees that work for small companies and specific transportation employees.
Requirements for “reasonable break times” and “private spaces”
“Reasonable break time” frequency and length may vary from employee to employee, dependent upon their needs. Employees are covered by PUMP protections “each time such employee has a need to pump at work” and for up to one year after the child’s birth.
The private space must be shielded from view, free from intrusion, and able to be used for pumping. The space provided cannot be a bathroom. The WHD provided the following considerations for employers:
- Employers must ensure the employee’s privacy, for example, by displaying a sign when the space is in use or providing a lock on the door
- Workers who telework must also be free from observation by any employer-provided or required video system, including a computer camera, security camera, or web conferencing platform
- Employees on passenger trains may temporarily obscure the view of recording devices when the train is not moving
FAQs about providing break times and private spaces
Does the space created/designated for nursing employees need to be permanent? No. Employers may create or convert a temporary space or make a space available when needed. The same requirements for the space being shielded from view and free from intrusion apply – bathrooms are prohibited.
Do I have to provide a space if I don’t currently have nursing employees? No. You are not required to provide a space; compliance with the statute requires that you make space available as needed “each time such employee needs to express milk.”
What if I have multiple nursing employees? Employers should consider if multiple spaces should be created/designated to ensure compliance, dependent upon the number of nursing employees and work schedules.
Break time compensation
The FLSA has minimum wage and overtime requirements that may require break time to be paid. The employee must be fully relieved of any work duties for the break time to be unpaid. If any time spent pumping is used for work activities/duties, the time must be counted as hours worked under FLSA minimum wage and overtime requirements.
If an employer is already providing paid break times to employees, the break time used for pumping must be compensated in the same way other employees are compensated for break times. Additionally, an employer may be required by federal law, state law, or municipal ordinance to provide paid pump breaks; PUMP protections do not override greater protections provided by other laws/ordinances.
Penalties for violations and non-compliance
Employees may file complaints for PUMP Act violations with the WHD and have a two-year statute of limitations. The WHD stated that as of April 28, 2023, remedies for violations may include any of the following:
- Compensatory and punitive damages
- Make-whole relief
- Employment, reinstatement, and/or promotion
- Payment of lost wages and an equal amount as liquidated damages
Other considerations for employers
- The enactment of the PUMP Act created updates to the FLSA poster to include information about PUMP Act protections. Employers are required to display the new notice (dated 4/2023) that includes this information in all locations.
- Minimal updates to the FMLA poster were also implemented. Employers may display the updated version (dated 4/2023). The April 2016 and February 2013 versions still fulfill the posting requirement.
- Policies related to pregnancy, nursing employees, and accommodations should be reviewed and updated to ensure they comply with the PUMP Act, and training should be provided to employees who may handle accommodation requests, provide break times, or create/designate private spaces.