Expanded Protections for Pregnant and Nursing Employees

By Bill Haut

Among the expansive provisions of the omnibus spending bill signed by President Biden last December are two additional federal measures expanding protections for pregnant and nursing employees: (1) The Pregnant Workers Fairness Act (“PWFA”); and (2) the Providing Urgent Material Protections for Nursing Mothers Act (the “PUMP Act”). (You have may noticed over the years that desired acronyms often drive the names given to particular legislation.)

PWFA – Requires Temporary and Reasonable Accommodations for Pregnant Employees

Employers familiar with the employment-related provisions of the Americans with Disabilities Act (“ADA”) will recognize some of the language of the PWFA. Effective June 27, 2023, the PWFA requires covered employers (generally 15 or more employees) to provide temporary and reasonable accommodations to pregnant job applicants and employees, and prohibits discrimination due to the need for a pregnancy-related accommodation.

Employers must satisfy the accommodation requirements by engaging in an interactive process (similar to that under the ADA) with the employee or applicant to determine a reasonable accommodation, provided the accommodation does not impose an undue burden on the employer. An employer may not require an employee covered by the PWFA to take paid or unpaid leave if another reasonable accommodation is available.

The Equal Employment Opportunity Commission (“EEOC”) has been directed to issue regulations providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, and related medical conditions. Those regulations are expected to draw heavily on the accommodation provisions under the ADA.

PUMP Act – Expanded Protection for Nursing Mothers

The PUMP Act expands workplace protections for nursing employees by requiring employers to provide all employees who are nursing with reasonable time and private space (other than a bathroom) to express breast milk (up to one year after the child’s birth). These expanded protections became effective on December 29, 2022, and have been available to non-exempt employees since 2010; the PUMP Act expands the protections to all employees covered by the Fair Labor Standards Act, both exempt and non-exempt. Employers with less than 50 employees may try to avoid application of the protections, but must be able to demonstrate that compliance will impose an undue hardship (based on size, financial resources, nature, or structure of the business – may not be an easy standard to overcome).

Several states, including Indiana, have included such protections in state law for several years and the expanded federal requirements do not preempt state laws with greater protections. The break time need not be compensated unless required by state law or the employer compensates employees for break time.

Action Required

Employers will want to make sure their policies are current with these additional protections and be prepared to satisfy their compliance obligations.