Boosting Workplace Protections for Pregnant and Nursing Workers

In late 2022, a $1.7-trillion spending bill was passed by Congress, which includes new legislation that expands rights for pregnant and nursing employees. The Pregnant Workers Fair Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) were both included in the bill and have since been signed into law by President Biden. Employers will need to adjust their policies to comply with these two measures. Here's a summary of the two acts:

The PWFA is modeled after the Americans with Disabilities Act and includes many of the same protections and steps employers must take if a pregnant employee asks for accommodations. Employers with 15 or more workers are required by law to make reasonable accommodations to limitations the worker conveys related to pregnancy, childbirth, or a related medical condition. Employers are required to enter into an interactive process with an employee covered by the PWFA to determine what kinds of reasonable accommodations they need and the employer can provide, as long as it does not impose an undue hardship on the employer. The law also prohibits employers from requiring an employee covered by the PWFA to take paid or unpaid leave if another reasonable accommodation is available. Employers may not retaliate, coerce, intimidate, threaten, or interfere if any worker requests or is provided with a reasonable accommodation. Similar to the ADA, employees whose rights have been breached can seek relief, including reinstatement, back pay, front pay, compensatory damages, punitive damages, and recovering attorneys' fees. The Equal Employment Opportunity Commission is required to write enabling regulations that include examples of reasonable accommodations for this new protected class.

The PUMP Act requires employers to provide employees who are nursing "reasonable time" and a private space to express milk. This law expands on the Fair Labor Standards Act, which requires employers to provide nursing employees who are non-exempt under the FLSA with break time and a private space to express milk for one year after they give birth. This new law expands the right to both exempt and non-exempt employees. Firms with fewer than 50 workers can qualify for an exemption from the law if they can establish that doing so would create an undue hardship (defined as creating significant difficulty or expense in relation to the business's size or financial resources). Employees who are denied a private place and time to express milk must first notify their employer of its alleged failure. If the employer doesn't remedy the situation within 10 days, the employee may commence an action against them and seek damages, including unpaid wages, reinstatement, back pay, front pay, and liquidated damages.

Employers should update their company policies to ensure they are in compliance with the new laws. Although smaller employers can claim an exemption, it is recommended to try and accommodate pregnant, new mothers, and lactating employees if possible. Employers should also avoid taking adverse action against this new protected class.