At the end of 2022, Congress passed a spending package that included two new employment laws enhancing the protections for pregnant workers. The Pregnant Workers Fairness Act (“PWFA”) requires employers with 15 or more employees to give reasonable accommodations to pregnant employees like they would for disabled workers under the Americans with Disabilities Act. The Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act expands employers’ existing obligations to provide time and space for nursing mothers to express milk at work. The PWFA goes into effect on June 27, 2023, and the Pump Act becomes fully effective April 28, 2023.
Before the passage of these bills, the law did not require employers to accommodate pregnant workers when their routine pregnancy limited their ability to work. The traditional rule was that routine pregnancy was not a disability under the Americans with Disabilities Act; thus, no such accommodations were required. However, the Pregnancy Discrimination Act has long prevented employers from treating pregnant workers differently than non-pregnant employees — meaning that, in some instances, employers did have to provide an accommodation to avoid discrimination. For example, if an employer provided light duty to an employee who had been injured at work, that employer would also have to provide light duty to a pregnant employee who had similar job limitations. On the other hand, if the employer did not provide light duty to anyone, it was not obligated to do so for a pregnant worker.
As a result of the PWFA, pregnancy will be given the same status as a disability under the Americans with Disabilities Act. Just like an employer must provide a reasonable accommodation, absent an undue hardship, to someone with a disability, employers now must do the same for their pregnant employees. This rule applies to both routine pregnancies and pregnancies with complications.
Next, under existing law, employers are required to provide a place — other than a restroom — for nursing mothers to express breast milk in private. Employers are also required to allow employees a reasonable amount of break time to do so during working hours. These obligations, as a technical matter, only applied to non-exempt employees (i.e., those eligible for overtime). The PUMP Act extends these protections to all employees, both exempt and non-exempt. The Act applies to all employers; however, an employer with less than 50 employees may avoid these obligations if it can demonstrate that the Act’s requirements are an undue hardship.
The practical impact of these new laws will really depend upon the protections and policies you have in place for pregnant employees. If you already have such policies, now will be a good time to review them. If you do not have similar protections already built into your policies and practices, it is time to update your policies to comply with these new laws. At a minimum, your policy of providing accommodations for disabled employees should be broadened to explicitly include pregnant employees. Moreover, if you have limited your lactation facilities to non-exempt employees, those facilities now need to be extended to everyone, regardless of their overtime eligibility under federal law.
As always, we are available to discuss your practices and review your policies to make sure you are complying with these new rights and obligations.
Written by: Trip Umbach
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