President Biden Signs Into Law the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act
On December 29, 2022, President Biden signed into law the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP for Nursing Mothers Act”) and the Pregnant Workers Fairness Act (“PWFA”). Employers should familiarize themselves with the new legal obligations under these two acts and revise their policies and procedures accordingly.
PUMP for Nursing Mothers Act
With few exceptions, the PUMP for Nursing Mothers Act is effective December 29, 2022. The PUMP for Nursing Mothers Act builds on an employer’s obligations under the Fair Labor Standards Act (“FLSA”). Under the FLSA, employers were already required to provide a private location for nursing employees to express breast milk. Under the PUMP for Nursing Mothers Act, an employer must now also afford the employee a reasonable break period for the expression of breast milk for one year following the birth of an employee’s nursing child.
The PUMP for Nursing Mothers Act provides that all employees must be paid for time spent expressing breast milk if expressing breast milk over an otherwise paid break or if not relieved from duty completely. However, while exempt employees must be paid their salary regardless of if they use a break period to express breast milk, an employer is not obligated to pay non-exempt employees over an otherwise unpaid break period unless it is required under some other municipal ordinance or state or federal law.
For an employer with less than 50 employees, an exemption may apply if the employer can demonstrate that adherence to the law would inflict an undue hardship on the employer’s business operations due to the expense and difficulty in relation to the resources or nature of the business. The PUMP for Nursing Mothers Act also includes an exemption for air carrier crewmembers and exceptions for particular employees of motor coach services and rail carrier operators, but there is no further exemption for other employees in the transportation industry.
Prior to filing suit for a violation of the PUMP for Nursing Mothers Act, an employee must bring the alleged violation to her employer’s attention and allow the employer a 10-day grace period to cure the alleged violation. However, this requirement does not apply to retaliation claims or claims alleging an employer expressed an intent to not comply with the law.
The Pregnant Workers Fairness Act
Effective on June 27, 2023, the PWFA shares many parallels with the Americans with Disabilities Act (“ADA”). Like the ADA, employers with at least fifteen employees will be subject to the requirements of the PWFA, and state employers are prohibited from claiming sovereign immunity from claims brought for violations.
The PWFA also requires employers to provide qualified employees with a “reasonable accommodation.” Under the ADA, a reasonable accommodation is a modification or adjustment to the work environment that allows employees with a disability to perform the essential functions of their job. However, an employer’s obligation to accommodate under the ADA is limited to modifications or adjustments that will not impose an “undue hardship” on the employer. The PWFA similarly requires employers to provide a “reasonable accommodation” to applicants and employees with “known limitations related to the pregnancy, childbirth, or related medical conditions.” The PWFA also adopts the ADA’s definition for the employer’s undue hardship defense.
One notable difference between the PWFA and ADA, however, is who is a “qualified individual” and entitled to protection under the Acts. Under the ADA, a “qualified individual” is an individual with a disability who is able to perform essential functions of a job “with or without a reasonable accommodation.” The PWFA has a similar definition, except for one important distinction. Under the PWFA, an employee is still “qualified” even she is temporarily unable to perform the essential functions of the job, so long as her temporary inability to perform the job can be reasonably accommodated and the possibility of performing the essential functions “in the near future” exists.
The PWFA requires an employee to put the employer on notice of the employee’s limitations. The PWFA allows either the employee or the employee’s representative to communicate the limitations to the employer. The PWFA also requires employers and employees to engage in the same interactive process as required under the ADA to determine a suitable reasonable accommodation. Although an employee under both the ADA and PWFA does not have a right to the accommodation of her choice, notably, the PWFA does prohibit employers from imposing forced paid or unpaid leave if a different reasonable accommodation is available. Additionally, the PWFA provides a good faith defense to liability for damages if an employer demonstrates a genuine effort to work with an employee to find a reasonable accommodation that would provide an equally effective opportunity for the employee without causing undue hardship to the employer.
With these significant legislative changes, employers should ensure their managers and supervisors are aware of these new obligations and make appropriate changes to their policies and procedures to meet the obligations imposed by these new laws. In doing so, employers should particularly be aware of their state laws and municipal ordinances in this area of law, as many states and municipalities have already passed legislation to protect pregnant and nursing workers. Remember that these federal laws set the minimum standards for employers, and state and local laws may provide different or additional protections for pregnant or nursing workers.
For example, Nebraska passed the Nebraska Pregnant Workers Fairness Act in 2015 as an amendment to the Nebraska Fair Labor Standards Act (“NFLSA”). While almost all of that amendment is now overlapped or expanded by the federal PWFA, one difference is Nebraska’s provision of reasonable accommodation examples for pregnant employees, including light-duty assignments, temporary transfers, and modified work schedules. Knowing these seemingly small differences in state or local laws can make a significant difference in the way an employer’s policies or practices should be structured.