The Fiscal Year 2023 Omnibus Spending Bill signed by President Biden on December 29, 2022, includes the Pregnant Workers Fairness Act (“PWFA”), which provides protections for employees who request accommodations during pregnancy as well as the PUMP (Providing Urgent Maternal Protections) for Nursing Mothers Act.
Under the PWFA, which will go into effect on June 27, 2023, employers will be required to provide “reasonable” accommodations to employees unless they would present an “undue hardship” for the employer. The PWFA applies to all private employers with at least 15 employees – regardless of whether those employees are full-time, part-time, temporary, or seasonal employees as well as people applying for jobs.
Specifically, the PWFA guarantees employees the affirmative right to receive reasonable accommodations for known limitations stemming from pregnancy, childbirth, and related medical conditions unless the requested accommodations would pose an “undue hardship” to the employer (similar to the familiar process in place for workers with disabilities). Some examples of reasonable accommodations may include:
- Light duty, or help with manual labor and lifting
- Temporary transfer to a less physically demanding or safer position
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the bathroom
- Changing food or drink policies to allow a worker to have a water bottle or food
- Changing equipment, devices, or work station, such as providing a stool to sit on or adding a lock to a clean meeting room to turn it into a temporary lactation space
- Making existing facilities easier to use, such as relocating a workstation closer to the restroom
- Changing a uniform or dress code, like allowing wearing maternity pants
- Changing a work schedule, like having shorter work hours or a later start time to accommodate morning sickness
- Breaks, private space (not in a bathroom), and other accommodations for lactation needs
- Flexible scheduling for prenatal or postnatal appointments
- Time off for bedrest, recovery from childbirth, etc.
In short, employees have a right to reasonable accommodations as long as it would not be significantly difficult or expensive – an “undue hardship” – for their employer to provide. Importantly, a pregnant or postpartum employee does not need to have a pregnancy-related disability in order to receive an accommodation. The employer must also promptly engage in the “interactive process” (in person, by phone, over email, etc.) to discuss the employee’s needs and reasonable accommodations that could meet those needs. Moreover, the employer cannot force an employee to accept an accommodation that the employee does not want or need, or force an employee to take paid or unpaid leave.
The PUMP for Nursing Mothers Act expands workplace protections for all employees – not just non-exempt workers – with a need to express breast milk. Employers are required to provide a reasonable amount of break time and a clean, private space for lactating workers to express milk for up to one year following the birth of the employee’s child. The pumping space cannot be a bathroom. These protections apply regardless of the employee’s gender. Further, time spent to express breast milk must be considered hours worked if the employee is also working. Namely, pumping time counts as time worked when calculating minimum wage and overtime if an employee is not completely relieved from their work duties during the pumping break. The legislation’s requirement to provide lactation break time and space to previously uncovered workers (teachers, registered nurses, farmworkers, and others) went into effect on December 29, 2022. The law’s expanded enforcement provision, which gives a right to file a lawsuit for monetary remedies, included a 120-day delay, making the effective date for that provision April 28, 2023. Before making a claim of liability against an employer, however, an employee generally must first notify the employer that they are not in compliance and provide them with 10 days to come into compliance with the required accommodations.
These important legal changes should prompt employers to reflect on their current parental leave, lactation, and other related policies. Such policies should establish clear expectations for the employer and all employees – including, for example, how the employer will accommodate breaks to express milk, where/how the employer will provide private areas to express milk, etc. Similarly – after being trained and advised appropriately – managers and supervisors should discuss the company’s relevant policies with any pregnant employee or prospective employee.
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Weston Hurd LLP attorneys regularly assist employers in all aspects of labor and employment law, including wage compliance, classification of exempt and non-exempt employees, determining proper overtime treatment and compensation, and – of course – compliance with the PFWA and PUMP for Nursing Mothers Act. For further information, please contact Sara Ravas Cooper (scooper@westonhurd.com), Russell T. Rendall (rrendall@westonhurd.com), Jennifer L. Whitt (jwhitt@westonhurd.com) or any of the labor and employment attorneys at Weston Hurd LLP.
