On December 29, 2022, President Biden signed into law two new Bills offering additional protections for pregnant and lactating workers.
The Pregnant Workers Fairness Act (PWFA)
The PWFA prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. Under the PWFA, a qualified employee is an employee/applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.
Specifically, the PWFA makes it an unlawful employment practice for an employer with 15 or more employees to:
- Fail to provide a reasonable accommodation(s) to a qualified employee unless the accommodation(s) would impose an undue hardship on the company’s business operation(s).
- Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.
- Deny employment opportunities because the company would be required to make a reasonable accommodation(s) for a qualified employee.
- Require an employee to take paid/unpaid leave where another reasonable accommodation can be provided.
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee who requests or accepts a reasonable accommodation(s).
There is much about the PWFA that will be familiar to employers as many of its requirements echo that of the American with Disabilities Act (ADA; as amended) and state law. As such, employers should review existing accommodation policies to ensure compliance extends to PWFA-related conditions and include the PWFA in training for all Human Resources and supervisory personnel.
Expect additional compliance resources in the coming months as the PWFA requires the Equal Employment Opportunity Commission to provide examples of reasonable accommodations that must be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.
The PWFA was signed into law on December 29, 2022 and becomes effective June 27, 2023.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act).
The PUMP for Nursing Mothers Act (the Act) expands workplace protections for employees with a need to express breast milk. Specifically, it expands the requirement that employers provide certain accommodations for such employees by requiring coverage for all employees. All employers are subject to the Act however, an exemption exists for employers with fewer than 50 employees if the Act’s “requirements would impose 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.”
The Act provides that an employer will not be required to compensate an employee utilizing break time for the purposes of expressing breast milk unless the employee is not completely relieved of work duties during the break period or as otherwise required by Federal or State law or municipal ordinance. The Act also extends the current accommodations period (e.g., a reasonable break time for an employee to express breast milk) from one year to two years.
A safe-harbor provision within the bill requires – under certain circumstances[i] – that an employee must first notify the employer of its alleged noncompliance and allow the employer 10 calendar days to comply with the Act before making a claim against the employer.
Employers should be mindful that nothing in the Act impacts compliance obligations under existing federal, state or local laws governing an employee’s need to express breast milk. With many states providing existing protections for lactating employees, employers should review current policies to assure compliance with Act mandates. Additional training for Human Resources and all supervisory personnel will also help with compliance efforts and reduce the risk of inconsistent practices.
The Act was signed into law on December 29, 2022 and goes into effect April 28, 2023.
[i] The safe-harbor provision does not apply where an employer has discharged the employee for requesting an accommodation under the Act or has indicated it does not intend to comply with the Act.