Employment Law Update: EXPANDED PREGNANT AND NURSING EMPLOYEE PROTECTIONS

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023, an omnibus spending bill into law.  The bill included two items affecting employers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act).  Summaries of the two new Acts are below.

Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act, effective June 27, 2023, requires public and private employers with 15 or more employees to provide reasonable accommodations to pregnant applicants and employees for medical conditions related to pregnancy and childbirth.  Additionally, several categories of public employers are covered by the PWFA regardless of the number of employees, including congressional employing offices, employees of elected officials in confidential or policymaking positions, and specific federal government agencies and departments.

The key updates in the PWFA are summarized below.

• The PWFA closely mirrors the Americans with Disabilities Act (ADA), but it does not require the employee to show they have a disability to request an accommodation.  
• Covered employers are required to provide pregnant employees and applicants reasonable accommodations for known limitations, physical or mental, related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate an undue hardship.  The EEOC will issue regulations that include examples of reasonable accommodations covered by the PWFA.  Possible examples  include additional bathroom breaks, light-duty, or adjusted schedules for morning sickness. 
• Once an employer is aware of a need for an accommodation under the Act, it must engage in the interactive process with the employee. 
• Previously, employers had no duty to accommodate pregnant employees unless they would provide the same accommodation to non-pregnant employees.  Under the PWFA, the employer must consider an accommodation regardless of whether the employer would provide the same accommodation to other non-pregnant employees. 
• Retaliating against workers for requesting an accommodation or reporting a violation is prohibited.
• Pregnant workers cannot be required to take paid or unpaid leave when there is another reasonable accommodation available.
• There is no governmental immunity for actions arising under the PWFA.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act)

The Providing Urgent Maternal Protections for Nursing Mothers Act expands and clarifies pre‑existing legal obligations for break times and spaces for nursing mothers under the federal Fair Labor Standards Act (FLSA).  The PUMP for Nursing Mothers Act is effective immediately on December 29, 2022, but remedies are not available to employees until 120 days after enactment on April 28, 2023.  The following information summarizes the new legal obligations.

• The Act expands break time and private space requirements for pumping to exempt employees who need to express milk for one year following childbirth in addition to non‑exempt employees. 
• Employers with 50 or more employees are obligated to comply with the break time and private space requirements.  Employers with fewer than 50 employees are not subject to the requirements if compliance with the provision would impose an undue hardship.  The burden is on the employer to show that compliance would impose an undue hardship.
• For non-exempt employees, breaks for pumping can be unpaid as long as the employee is completely relieved of work duties during that time.  The Act clarifies that if the employee is not completely relieved of duties during the break time, then the break must be considered working, paid time.
• Before commencing an action for failure to comply with these requirements, an employee must first notify the employer of the failure and allow 10 days for the employer to comply unless an employee is terminated for exercising rights under the PUMP Act or if the employer indicates that they will not comply.
• The rules for Air Carriers, Rail Carriers, and Motorcoach Services Operators include exceptions and variations based on the limited space available in planes, trains, and buses.
• The Act does not preempt any State law or municipal ordinance that provides greater protections.  Texas has a law that applies only to public‑sector employers, which states that no time limit applies to the right to express breast milk at the employee’s workplace.  Under this law, public employers must adopt a written policy that states that the public employer supports the practice of expressing breast milk and make reasonable accommodations for the needs of employees who express breast milk.  The employer must allow a reasonable amount of break time for an employee to express breast milk, as often as the employee needs to do it, and must provide a secluded place, other than a multi-user bathroom, that is private and safeguarded from intrusions by other employees and the public, where the employee can express her milk.  

What should employers do in response to these new laws?

These new laws expand upon already existing legal requirements, so employers should update their current policies to reflect the new requirements in these laws and conduct training with managers and supervisors to ensure they understand the organization’s obligations to accommodate pregnant and nursing employees. 

If you have any questions related to this announcement or other employment law matters, contact Sarah Glaser, Chair of Lloyd Gosselink’s Employment Law Practice Group, at 512.322.5881 or sglaser@lglawfirm.com, or Jessica Maynard at 512.322.5807 or jmaynard@lglawfirm.com.  Prepared by Sarah Glaser, Chair of the Firm’s Employment Practice Group, Jessi Maynard, an Associate in the Firm’s Employment Practice Group, and Michelle White, a University of Texas School of Law student and law clerk in the Firm’s Employment Practice Group.