On December 29, 2022, two important laws were passed providing further protections relating to pregnancy, childbirth, and breast feeding: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).  The purpose of the two laws is to bridge the gap in federal protections for employees who are affected by pregnancy or pregnancy related conditions and employees who are breastfeeding.

The Pregnant Workers Fairness Act

The PWFA requires employers to make reasonable accommodations for the known limitations associated with pregnancy, childbirth, or related medical conditions to a “qualified employee,” unless the accommodation would impose an undue hardship on the employer.  A “qualified employee” is an employee or applicant who can perform the essential functions of the employment position, with or without a reasonable accommodation. 

The protections of the PWFA are similar to the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), except with additional protections.  The PWFA makes it unlawful for an employer to require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept:

  1. an accommodation other than any reasonable accommodation arrived at through the interactive process or
  2. to require a qualified employee to take leave if another reasonable accommodation can be provided.

 

The PWFA also makes it unlawful to deny employment opportunities to a qualified employee if the denial is based on the employee’s need for a reasonable accommodation.  For example, the employer cannot deny you a promotion because you asked for a reasonable accommodation.  The PWFA also bans taking an adverse employment action on account of the employee’s requesting or using a reasonable accommodation.  In other words, the employer cannot refuse to hire, suspend, terminate, etc. because you request an accommodation or because you utilized the accommodation provided to you.  

IMPORTANT NOTES

The PWFA becomes effective June 27, 2023.

The PWFA only applies when the employer has 15 or more employees.

Just like the PDA, ADA, and other employment-related discrimination statutes, the employer must have notice of the limitations associated with the qualified employee’s pregnancy, childbirth, or related medical conditions.  Inform your employer of any limitations you experience that affect your ability to perform your job as soon as possible.

The Equal Employment Opportunity Commission (EEOC) is required to issue regulations by or before June 27, 2025, which will provide examples of reasonable accommodations addressing the known limitations related to pregnancy, childbirth, or related medical conditions. 

 

The Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act provides protections—in addition to those provided under the Fair Labor Standards Act (FLSA)—for employees who need to express breast milk while at work.  Under the FLSA, an employer is required to provide employees expressing breast milk with a reasonable break period each time an employee needs to do so within the first year after the birth of a child.  The PUMP Act extends this protection to cover a two-year period after the birth of a child. 

Additionally, the PUMP Act requires the employer to provide a place—other than a restroom—that:

  1. obstructs other employee’s views of the lactating employee and
  2. is free from intrusion from co-workers and the public.

The PUMP Act additionally updates former legislation to provide clarification on compensation due while an employee utilizes the break time to express breast milk.  If an employee is completely relieved from duty, the employer is not required to compensate an employee during the break time.  However, if you are not completely relieved from duty, the employer is required to compensate you for the entire break.

IMPORTANT NOTES

The PUMP Act becomes effective April 28, 2023.

The PUMP Act only applies to employers who have 50 or more employees.

The PUMP Act does not apply to flight attendants or pilots.

There is a three-year delay in implementing the PUMP Act protections for railway workers.

The PUMP Act applies to all covered employees (i.e., exempt and non-exempt).

With some exceptions, employees are required to provide notice of any alleged violation and provide the employer a 10-day period to fix any violation before starting legal action.

If you have any questions about the PWFA or the PUMP Act, please contact Gibbons Law Group, PLLC.

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