On December 29, 2022, President Biden signed into law both the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protection for Nursing Mothers Act (“PUMP Act”).[i] The PUMP Act was signed into law on December 29, 2022, but there is a 120-day delay included in the enforcement provision making the effective date April 28, 2023.[ii] PWFA will go into effect on June 27, 2023.[iii] Both laws enhance protections for applicable employees, so employers are wise to keep reading to ensure their policies adhere to these expanded protections.

What is the Pregnant Workers Fairness Act (PWFA)?

According to the United States Equal Employment Opportunity Commission (“EEOC”), the PWFA is a law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The only exception to this requirement is where providing the accommodation would cause “undue hardship” to the employer, which is defined as “significant difficulty or expense.” [iv]

Purpose of the PWFA

The PWFA was created to protect pregnant workers who require temporary job modifications in order to keep working and have a healthy pregnancy; even though pregnancy discrimination was outlawed in 1978, there were many gaps in the protection for pregnant workers which the PWFA seeks to fill.[v] Employers have previously denied pregnant workers’ requests for more frequent breaks, schedule changes, and even reassignment of hazardous tasks; these workers have had to choose between following their doctors’ orders and earning an income.[vi]

Covered Employers, Reasonable Accommodations, and Prohibitions

“Covered employers” includes both private and public employers with at least fifteen employees, Congress, federal agencies, employment agencies and labor organizations.[vii] Some examples of “reasonable accommodations” given by The House Committee on Education and Labor Report on the PWFA include [viii]:

• having the ability to sit or drink water;
• receiving closer parking;
• having flexible hours;
• receiving appropriately sized uniforms and safety apparel;
• receiving additional break time to use the bathroom, eat, and rest;
• taking leave or time off to recover from childbirth; and,
• being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

The PWFA prohibits covered employers from denying employment opportunities to qualified employees because of their need for reasonable accommodations.[ix] Covered employers cannot require an employee to accept an accommodation without a discussion about the accommodation, nor can they require an employee to take leave if another reasonable accommodation can be provided that would allow the employee keep working. Finally, covered employers are prohibited from retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, and covered employers may not interfere with any individual’s rights under the PWFA.[x]

What is the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act)?

Background

The Break Time for Nursing Mothers provision of the Fair Labor Standards Act (FLSA) became effective when the Affordable Care Act was signed into law on March 23, 2010. The law required employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”[xi] Employers were also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”[xii] While the passing of this law was considered a landmark event, nearly one in four women of childbearing age were not covered by the Break Time for Nursing Mothers law.[xiii] Thus, the PUMP Act was born as a means to bridge this gap.

The PUMP Act’s Changes

There are a few major changes enacted by the PUMP Act:

1. The Act expands the employee coverage to include teachers, nurses, farmworkers and many others. Previously, only non-exempt nursing mothers were covered; [xiv]
2. An employee can file a lawsuit against an employer that violates this law; and,
3. Pump time counts as time worked when calculating minimum wage and overtime, as an employee is not completely relieved from their work duties during the pumping breaks.[xv]

FLSA requirements under the PUMP Act do not preempt State laws that provide greater protections to employees (for example, compensated break time, or break time to express milk beyond one year after the child’s birth).[xvi]

Covered Employees, Employers & Exemption Standard:

Nearly all FLSA-covered employees are covered under the PUMP Act. There are certain employees of airlines, railroads, and motorcoach carriers who are exempt from nursing employee protections under the FLSA. These exempted employees may be entitled to break and/or space protections under State or local laws.[xvii]

The PUMP Act applies to most employers, but employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance with the provision would impose an “undue hardship.”[xviii] “Undue hardship” is determined by evaluating the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. When determining whether the exemption applies, all employees who work for the covered employee are counted, regardless of work site.[xix]

In terms of space, employers are required to provide nursing employees a space to express breast milk that is: (1) not a bathroom, (2) shielded from view, and (3) free from intrusion from coworkers and the public.[xx] It is imperative to understand that the Wage and Hour Division made it clear that “bathroom, even if private, is not a permissible location for the employer to provide” to express breast milk. [xxi]

Prohibitions and Remedies for Violations

It is a violation of the FLSA for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint, or participated in any proceeding under the Act (including instituting, causing, preparing to or testifying in a proceeding). Employees are protected regardless of whether the complaint is made orally or in writing. Complaints made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints to an employer are also protected.[xxii] Any employer, starting on April 28, 2023, that violates an employee’s right to reasonable break time and space to pump breast milk will be liable for appropriate legal or equitable remedies under the FLSA; the employee may file a private cause of action or complaint with the Wage and Hour Division. Remedies for violations prior to April 28, 2023 are limited to unpaid minimum or overtime wages, and employees who experienced retaliation may also seek additional remedies.

Takeaways

1. Prior to June 27, 2023, employers should update accommodation policies to ensure compliance with the PWFA, and consider what types of duty assignments may be offered to pregnant employees. Additionally, employers should train Human Resource and other management personnel who might evaluate accommodation requests to ensure that they understand the requirements and act in accordance. [xxiii]
2. Since the PUMP Act took effect April 28, 2023, employers should ensure that they have a designated space for nursing workers that complies with the Act’s standards. If an employer believes creating a space that is compliant with the PUMP Act would constitute and undue hardship, they should guidance from the Department of Labor to avoid potential violations. [xxiv]

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Sources

[i] What do the Pump Act and PWFA mean for employers?, Haynsworth Sinkler Boyd (2023), https://www.hsblawfirm.com/Connect/Blog/2023/What-do-the-PUMP-Act-and-PWFA-mean-for-employers.

[ii] The Providing Urgent Maternal Protections (PUMP) For Nursing Mothers Act, U.S. Breastfeeding Committee, https://www.usbreastfeeding.org/pump-act.html.

[iii] What do the Pump Act and PWFA mean for employers?, Haynsworth Sinkler Boyd (2023).

[iv] What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.

[v] Three reasons why Congress must pass the Pregnant Workers Fairness Act Now: ACLU, American Civil Liberties Union (2023), https://www.aclu.org/news/womens-rights/three-reasons-why-congress-must-pass-the-pregnant-workers-fairness-act-now.

[vi] Id.

[vii] Diane Tindall, Employers take note: Pregnant workers fairness act takes effect this summer WyrickRobbins (2023), https://www.wyrick.com/news-insights/employers-take-note-pregnant-workers-fairness-act-takes-effect-this-summer#:~:text=The%20PWFA%20requires%20covered%20employers,employers%E2%80%9D%20include%20private%20and%20public.

[viii] What You Should Know About the Pregnant Workers Fairness Act, U.S. Equal Employment Opportunity Commission.

[ix] Id.

[x] Id.

[xi] 29 U.S.C.A. § 207(r).

[xii] Id.

[xiii] The Providing Urgent Maternal Protections (PUMP) For Nursing Mothers Act, U.S. Breastfeeding Committee, https://www.usbreastfeeding.org/pump-act.html.

[xiv] Break Time for Nursing Mothers, WIC Works Resource System U.S. Department of Agriculture, https://wicworks.fns.usda.gov/resources/break-time-nursing-mothers.

[xv] The Providing Urgent Maternal Protections (PUMP) For Nursing Mothers Act, U.S. Breastfeeding Committee, https://www.usbreastfeeding.org/pump-act.html.

[xvi] Frequently Asked Questions – Pumping Breastmilk at Work, WAGE AND HOUR DIVISION; UNITED STATES DEPARTMENT OF LABOR, https://www.dol.gov/agencies/whd/nursing-mothers/faq.

[xvii] Fact sheet #73: Break time for nursing mothers under the FLSA, WAGE AND HOUR DIVISION  UNITED STATES DEPARTMENT OF LABOR, https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers#:~:text=Fact%20Sheet%20%2373%3A%20FLSA%20Protections,Pump%20Breast%20Milk%20at%20Work&text=Under%20the%20Fair%20Labor%20Standards,breast%20milk%20while%20at%20work.

[xviii] Id.

[xix] Id.

[xx] Break Time for Nursing Mothers, WIC Works Resource System U.S. Department of Agriculture, https://wicworks.fns.usda.gov/resources/break-time-nursing-mothers.

[xxi] Id.

[xxii] Fact sheet #73: Break time for nursing mothers under the FLSA.

[xxiii] Mandy Nevius, The Pregnant Workers Fairness Act: What Your Business Needs to Know Keiter CPA (2023), https://keitercpa.com/blog/pwfa-what-your-business-needs-know.

[xxiv] Sara Alexis Levine Abarbanel & Katelynn M. Williams, What employers need to know about new breastfeeding law Foley & Lardner LLP (2023), https://www.foley.com/en/insights/publications/2023/02/what-employers-need–know-new-breastfeeding-law.