The Final Word
- The new legislation provides additional protections to nursing employees and pregnant workers in the workplace. This addresses inadequacies in existing federal law regarding employer accommodations of work-related limitations suffered by employees during pregnancy.
- The PWFA expands upon concepts from the Americans with Disabilities Act, requiring employers to provide reasonable accommodations and other protections to pregnant workers even in the absence of an underlying disability, and even where the employee’s inability to perform an essential job function is only temporary.
- The PUMP for Nursing Mothers Act allows for accommodations for all lactating workers, not just hourly employees covered under the Fair Labor Standards Act but also salaried employees. The statute also expands the remedies available for lactating employees, but mandates a notice and cure period prior to an employee’s commencement of an action against an employer for failure to provide adequate space for breastfeeding.
The bottom line
Employers need to take measures to ensure compliance with both PWFA (PUMP for Nursing Mothers Act) and PWFA. Employers should review the policies they have in place regarding reasonable accommodation for employees, and the location and time that lactating employees can be held, to ensure compliance with the new legislation. The PWFA/PUMP for Nursing Mothers Act establish minimum standards of compliance. They do not preempt any applicable state or local law that may provide more generous protections to employees who work in certain areas.
Two pieces of legislation for nursing and pregnant mothers were signed into law by President Biden on December 29, 2022 as part of the Fiscal Year 2020 Omnibus Spending Bill.—Pregnant Workers Fairness Act. The new legislation expands protections for pregnant and nursing employees in the workplace, with the goal of putting an end to the inconsistent patchwork of case law and state and local legislation governing employers’ treatment of such employees relative to their conditions.
PWFA incorporates some concepts under the Americans with Disabilities Act, such as the obligation of reasonable accommodations. But it also covers situations involving childbirth, pregnancy, and other medical conditions. The Fair Labor Standards Act was amended by the PUMP for Nursing Mothers Act. This Act expands upon existing rules that require employers for designated time and space for breastfeeding employees to pump breastmilk throughout the workday.
Pregnant Workers Fairness Act
Under the U.S. Supreme Court’s interpretation of the Pregnancy Discrimination Act in Young v. UPSEmployers are only required to provide accommodations for pregnant employees if comparable accommodations were made to employees with similar limitations (e.g., injured or disabled employees) Inconsistency was caused by the absence of pregnancy-comparable situations. It is believed that these inconsistencies have resulted in the dismissal or partial dismissal of nearly two-thirds all lawsuits involving pregnancy-related accommodations.
The PWFA requires employers to provide reasonable accommodation and other protections for pregnant workers, even if there is no underlying disability. Employers generally must extend these protections to both employees and job applicants—so long as the individual is able, or in the near future will be able, to perform the essential functions of the employment position. In other words, an individual is considered a “qualified employee” even if, for a temporary period, they are unable to perform an essential function of the job, and the essential function could be performed in the “near future.” Neither “temporary” nor “near future” are defined terms.
The PWFA specifically requires employers that have 15 or more employees to provide protections for pregnant employees and job candidates with mental or physical conditions resulting from or affected by pregnancy, childbirth or related medical conditions.
- Reasonable accommodations. Employers must offer reasonable accommodation to applicants and employees who disclose mental or physical conditions that are related to or affected by pregnancy, childbirth, or any other medical condition. Employers that can show undue hardship in the operation of their business are exempted from the ADA.
- Interactive process. Accommodations must be reached through the same interactive process as the foundation for compliance under the ADA. This process involves cooperation between the employee or applicant, the health care provider, and the employer in order to understand the nature of the individual’s condition and the limitations that may affect the individual’s ability to perform the essential job duties.
- Employment opportunities. Employers cannot refuse employment to pregnant workers due to the need to provide reasonable accommodation.
- You are not required to take leave of absence. Employers must provide reasonable accommodation Other You can take a leave of absence, paid or unpaid, if you have one.
- There is no adverse effect on employment privileges Pregnant employees must have the same conditions and privileges as other workers if they are not required or requested reasonable accommodations.
- Prohibition against retaliation. Employers may not retaliate against an individual in the exercise or enjoyment of rights (or in the aiding and abetting of another individual’s exercise of rights) under the PWFA, or discriminate against an employee for opposing any act rendered illegal by the PWFA.
Remedies under the PWFA are the same as those under Title VII of the Civil Rights Act, which include injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. Individuals may file charges with the Equal Employment Opportunity Commission and/or state or local agencies for investigation.
The PWFA will take effect 180 days after its signing into law on June 27, 2023. Within one year, the EEOC will issue regulations under PWFA.
Act PUMP for Nursing Mothers
The Affordable Care Act, which was passed in 2010, included amendments to the Fair Labor Standards Act. These required hourly workers to be allowed to express breastmilk for one year. They also had to have a safe place to go to if they need to. Employers with less than 50 employees can be exempted if they can show that compliance would cause undue hardship. Rail employees, flight attendants, and pilots are exempt.
The PUMP for Nursing Mothers Act replaces FLSA Amendments and expands law in the following:
- All lactating employees are accommodated Employers must provide the above mentioned break time and place to all lactating employees, hourly or salaried.
- For partial exemption of duties, compensation If an employee is not completely relieved during a break, breaks are not considered hours worked.
- Remedial notice is required The PUMP for Nursing Mothers Act adds a requirement for employees seeking to recover for the employer’s failure to provide the appropriate place for nursing: The employee must provide notice to the employer and 10 days to cure before commencing an action against the employer. This notice requirement does not apply to an employee who was terminated for requesting an employer’s compliance, or when an employer has indicated it will not comply.
- Expansion of remedies The PUMP for Nursing Mothers Act expands the existing remedies for nurses employees by making all rights under the FLSA available. These remedies include reinstatement, unpaid wages, and liquidated damages.
The PUMP for Nursing Mothers Act’s access provisions went into effect on December 29, 2022. The remedies provisions, however, will go into effect 120 days later or on April 28, 2023.
Employer Action points
Employers need to take measures to ensure compliance with both PWFA (PUMP for Nursing Mothers Act) and PWFA. Employers should examine their policies regarding reasonable accommodations provided to employees, and the time and place for lactating employees, in light of the expanded protections offered by the new legislation.
Employers who have developed their reasonable accommodation policies or procedures in compliance with the ADA or state or local laws that are not up to date should reconsider these policies to reflect the expanded accommodation provisions under the PWFA. Revisions could address, among others, the expansion in the group of people entitled to reasonable accommodations because of pregnancy, childbirth or related medical conditions. This includes pregnant workers whose inability perform essential job functions is temporary and alternative accommodations that may prove to be more preferable to a leave.
Employers should also revise their existing lactation policies in order to reflect the changes to the law made by the PUMP for Nursing Mothers Act. This includes the inclusion of salaried workers and the new remedies. Employers should address how to respond to an employee’s notice of noncompliance quickly in light of the short, 10-day cure period.
Employers must be ready to comply with agency guidance under the PWFA. The EEOC’s implementing regulations will provide additional rules regarding compliance and specific examples of reasonable accommodations for pregnant workers. They won’t require employers-sponsored plans to cover any item or treatment that is considered reasonable accommodations.
Employers need to remember that the state and local governments may require greater protections of pregnant or lactating employees than federal law. PWFA/PUMP for Nursing Mothers Act establish minimum standards for compliance but do not supersede applicable state and local laws.
The attorneys of Ballard Spahr’s Labor and Employment Group help employers successfully manage their workforces to optimize productivity and employee loyalty in the face of unprecedented challenges in today’s employment environment. We can help you with regulatory compliance and training, as well as advising on policies.
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