Nursing / Pregnant Protections

On Dec. 29, 2022, President Joe Biden signed into law an omnibus government spending bill that includes two new pieces of legislation affecting the federal rights of nursing and pregnant employees in the workplace.

The Providing Urgent Maternal Protections for Nursing Mothers Act

The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act is an amendment to the Fair Labor Standards Act of 1938 and became effective immediately upon the president's signature. The PUMP Act requires employers to:

• Provide reasonable break time for an employee to express breast milk for such employee's nursing child for one year after the child's birth each time such employee needs to express breast milk; and
• Provide a location, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.

Prior to the amendment, pursuant to the Affordable Care Act, employers were required to provide reasonable break time and a private location for nursing only to nonexempt employees. The PUMP Act expands such protections to exempt employees.

Employers are not required under the PUMP Act to compensate an employee receiving reasonable break time to express breast milk unless otherwise required by federal, state or municipal law or if the employee is not "completely relieved from duty during the entirety of such break." Nonexempt employees should be paid for break time used to express milk if they are using otherwise paid break time. Exempt employees should be paid their salary when they use reasonable break time to express milk. There are also exemptions under the law for specific industries such as air and rail carriers and motorcoach service providers.

Employers with fewer than 50 employees are not subject to the above requirements if they would pose an undue hardship by causing the employer "significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."

Employees have a private right of action under the PUMP Act. But before commencing an action regarding an employer's provision of a location to express milk, an employee must first (1) notify the employer of its failure to provide such a location and (2) provide the employer with 10 days after such notification to come into compliance unless the employee has been discharged because the employee made a request for break time or a location to express milk or opposed any related employer conduct, or the employer indicated that it had no intention of providing the location. Damages for violation of the law are the same as those under the FLSA and include reinstatement, back and front pay and liquidated damages.

The PUMP Act does not preempt state or municipal laws that provide greater protections for breastfeeding employees in the workplace. Both New York State and New York City laws, for instance, provide broader protections for breastfeeding employees than the PUMP Act, as do many other state and local laws. (For more information on breastfeeding laws in New York State and New York City, please see our previous alert.) Employers with offices in multiple jurisdictions, however, must ensure compliance with the PUMP Act's requirements in all of their locations.

Pregnant Workers Fairness Act

Under the Pregnant Workers Fairness Act (PWFA), which is modeled after the Americans with Disabilities Act of 1990 (ADA), it is an unlawful employment practice for an employer with 15 or more employees engaged in an industry affecting commerce, as defined by Title VII of the Civil Rights Act of 1964 (as well as other "covered entities" under the Civil Rights Act), to:

• Not make reasonable accommodations for "known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee" unless the employer can demonstrate that the accommodation would pose an undue hardship on the operation of its business;
• Require a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than a reasonable one arrived at through the interactive process;
• Deny employment opportunities to qualified employees if such denial is based on the need of a reasonable accommodation to the known limitations related to pregnancy, childbirth or related medical conditions;
• Require a covered employee to take leave, paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to pregnancy, childbirth or related medical conditions; or
• Take adverse action against a qualified employee on account of the employee requesting or using a reasonable accommodation for known limitations related to pregnancy, childbirth or related medical conditions of the employee.

Under the PWFA, a "known limitation" means a "physical or mental condition related to, affected by, or arising out of pregnancy, childbirth or related medical conditions that the employee or the employee's representative has communicated to the employer" whether or not it meets the definition of "disability" under the ADA. A "qualified employee" means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position. An employee is still "qualified" even if they are unable to perform the essential functions of the job temporarily or in the near future, or could perform the essential functions of the job if reasonably accommodated.

The PWFA contains an anti-retaliation provision, which prohibits all persons (including employers) from discriminating against an employee because such employee has opposed any act or practice made unlawful by the PWFA or because such employee made a charge, testified, assisted or participated in any manner in an investigation under the PWFA. It also contains a prohibition against coercion, intimidation, threats or interference with employees' exercise or enjoyment of any right under the PWFA. Damages for violation of the law are the same as those under Title VII and include reinstatement, back and front pay, compensatory and punitive damages, and fees and costs. Importantly, compensatory and punitive damages for intentional discrimination may not be awarded if the employer can demonstrate that it engaged in good faith efforts, in consultation with the employee with a known limitation, to identify and make a reasonable accommodation "that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation" of the employer.

The EEOC is required to issue regulations to implement the PWFA within one year after June 27, 2023, which must include examples of reasonable accommodations addressing known limitations. We expect reasonable accommodations under the PWFA will be considered easier for employers to make because they are likely to be more temporary in nature. For example, a pregnant employee may require remote work during pregnancy but then be expected to return to the office after the birth.

The PWFA does not preempt any other federal, state or local law that provides greater or equal protection than the PWFA. The ADA already applies to workers with disabilities related to pregnancy but, as explained above, the PWFA expands protections to the conditions related to pregnancy and childbirth, as well as related medical conditions, that are not defined as disabilities under the ADA. And the federal Pregnancy Discrimination Act already provides that people affected by pregnancy, childbirth or related medical conditions may not be discriminated against compared to similar nonpregnant people. New York State and New York City, as well as many other states and municipalities, already have laws in place protecting pregnant employees against discrimination and guaranteeing them the right to reasonable accommodations in the workplace. (More information on New York State law can be found here and more information on New York City law can be found here.) Like with the PUMP Act, however, employers with multistate offices should ensure nationwide compliance with the PWFA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Eliza A. Kaiser and Rachael Schuman, Kramer Levin Naftalis & Frankel LLP, (c) Mondaq Ltd.

From WCI's HR Answers Now ©2023 CCH Incorporated and its affiliates. All rights reserved.