New Federal Laws Expand Rights of Pregnant and Nursing (Lactating) Employees in the Workplace

08.11.2023

On December 29, 2022, as part of the Consolidated Appropriations Act, 2023, the federal legislature added two new laws to protect the rights of pregnant and nursing (lactating) employees: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act. Under these new laws, employers have new accommodation obligations for pregnant and nursing employees.

Pregnant Workers Fairness Act

Effective June 27, 2023, the PWFA grants covered employees a right to reasonable accommodations related to pregnancy, childbirth, and related medical conditions, even if an employee’s condition does not qualify as a “disability” under the Americans with Disabilities Act (“ADA”). Covered employees include those who are pregnant, recovering from childbirth, or have “related conditions.”  The PWFA recognizes and attempts to fill the gaps in the existing federal legal protections available to workers affected by pregnancy, childbirth, and related medical conditions. 

The PWFA broadens the class of employees entitled to accommodation by requiring accommodation regardless of whether the employee’s limitation qualifies as a disability under the ADA. Pregnancy itself is not a disability under the ADA; however, an employee’s pregnancy, childbirth, or post-partum period can result in secondary conditions which do qualify as disabilities under the ADA. The PWFA’s purpose is to cover pregnancy-related limitations that do not rise to the level of a disability. 

Under the PWFA, employers must engage in the interactive process with employees to determine what accommodations are reasonable based on the limitations of each individual.  Absent “undue hardship” to the operations of the business, an employer must provide “reasonable accommodations” where an employee communicates to the employer that she has a physical or mental condition arising out of pregnancy, childbirth, or a related medical condition.  The House Committee on Education and Labor provided some examples of reasonable accommodations, including the ability to sit or drink water; closer parking; more flexible hours; additional break time to use the bathroom, eat, and rest; ability to take leave or time off to recover from childbirth; and excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. The PWFA specifically prohibits requiring an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.   

Notably, under the ADA, employers are not required to eliminate essential job functions to accommodate a disabled employee at any time. However, under the PWFA, employers may be required to remove essential job functions if the employee’s inability to perform them is temporary and can be reasonably accommodated.

On August 7, 2023, the EEOC issued proposed regulations to implement the PWFA.  It is expected that the EEOC regulations will clarify how certain terms in the statute will be interpreted, such as “temporary,” “essential functions,” and “communicated to the employer.”  The regulations are also expected to clarify circumstances in which employers may request medical information.  The EEOC has until December 29, 2023 to issue final regulations.

These new PWFA employer obligations are in addition to existing duties related to pregnancy and post-partum employee accommodations and leave under the ADA, Title VII, Family and Medical Leave Act, and state law. In California, the Pregnancy Disability Leave Act (“PDLA”) requires employers to provide job-protected leave for up to four months to employees who are disabled by pregnancy, childbirth, or related medical conditions, and to provide reasonable accommodations to those “affected” by such conditions upon the advice of their health care provider. In comparison, the PWFA will likely require on-the-job accommodations, job reassignment, and possibly even leave, for such conditions that do not constitute a disability.

The EEOC revised its “Know Your Rights” poster effective June 27, 2023 to reflect the changes required by the PWFA.  Qualified employers should replace the prior version of the “Know Your Rights” poster with the current version.  Employers should update their policies and procedures for accommodation requests and train supervisors on how to respond to accommodation requests from employees who are pregnant, recovering from child birth, or have “related conditions.”

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

The Consolidated Appropriations Act, 2023 amended the Fair Labor Standards Act of 1938 (“FLSA”) to add the PUMP Act.  The PUMP Act, effective December 29, 2022, requires employers to provide a reasonable amount of break time and space to workers who were not previously covered by federal lactation laws (i.e., salaried and hourly workers) for the purpose of expressing breast milk.  California lactation law and the PUMP Act both require employers to provide lactating employees with a place, other than a bathroom, which is private and free from intrusion, to express breast milk.  California lactation law provides more detail regarding the necessary features of a lactation room, including being safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; having access to electricity; and having access to a sink. 

The PUMP Act’s enforcement provision went into effect on April 28, 2023.  Though the PUMP Act requires employees to inform their employers about inadequate lactation space ten days before filing a lawsuit, employees can file a complaint with the Department of Labor without providing advanced notice of the deficiency.

While the PUMP Act limits the period for lactation accommodation requests to a period of one year after the child’s birth, California law does not have any time limitation for requests for lactation accommodations.  In California, if the lactation break time does not run concurrently with rest break times, the lactation break time may be unpaid.  However, the PUMP Act clarifies that time spent to express breast milk must be considered hours worked if an employee is not completely relieved of duty during break time.  California lactation law and the PUMP Act also both provide that employers with less than fifty employees may decline to provide a lactation accommodation if they can show an undue hardship. 

In order to avoid potential liability, employers in California should review their policies, assess their facilities, review their procedures, and provide training to supervisors to make sure they are compliant with federal and state laws in this area. 

Please contact the authors of this alert or your usual AALRR counsel with any questions regarding the PWFA or the PUMP.

*Thanks to Law Clerks Brooklyn Robertson and Alexandra Shamash for contributing to this article.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

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