[co-author: Delores Chichi]
The Pregnant Workers Fairness Act, (PWFA), was modeled after the Americans with Disabilities Act (ADA), and enforced under the Equal Employment Opportunities Commission. It was approved by bipartisan congressional support and signed into law by President Joe Biden on December 29, 2022. The PWFA expands and federalizes pregnant employees’ protections currently found in the Pregnancy Discrimination Act (PDA), which was a prior amendment to Title VII. The PWFA goes into effect June 27, 2023. On December 29, 2022, the Providing Urgent Motheral Protections Act for Nursing Moms (PUMP Act), was also signed into law. It amends the Fair Labor Standards Act. Employers are required to give employees (exempt and non-exempt) reasonable time to express breastmilk. Nonexempt employees are also required to pay breaks, unless they are completely relieved from their duties during the entire break. Although the PUMP Act took effect immediately, enforcement provisions will go into effect on April 28, 2023.
PWFA: What’s the deal?
The PDA imposes the previous standard, which is interpreted by Supreme Court. Young v. United Parcel Serv., Inc.Accommodations for pregnant employees were only available for medical conditions that related to pregnancy. When claiming failure to accommodate, it was the plaintiff’s burden to show that defendant accommodated others who were “similarly situated in their ability or inability to work.” In short, pregnancy, in and of itself, was not enough to trigger an accommodation under the PDA. The standard was set by Young The law was complicated and received many interpretations by the courts.
The PWFA bridges the gap by codifying pregnant workers’ protections that were not explicitly included in the ADA or the PDA. Employers who have 15 or more employees are required to make reasonable accommodations to accommodate known limitations in pregnancy, childbirth, and related medical conditions. Qualified employees are those who can perform the essential functions in the job with or without reasonable accommodation. Employers should engage in an interactive process for reaching a reasonable accommodation. Employers can’t require employees to take unpaid or paid leave if they can provide another reasonable accommodation. Reasonable accommodations could include allowing an employee to stand or sit more often than usual, reducing or revising their schedules, allowing for more frequent breaks, moving a workstation closer to a bathroom or water source, providing assistance with physically demanding tasks or arranging for temporary or light duty.
Employers are not required to offer accommodation if there is undue hardship to the business’ operation. However, employers cannot deny employment to qualified employees or take adverse actions against employees if the refusal or action is based upon the need or request for reasonable accommodations in relation to pregnancy, childbirth, or other medical conditions. Remedies available under Title VII are also applicable to the PWFA, which includes a private right of action (after exhausting administrative remedies) that may result in an award of back pay, compensatory damages and attorneys’ fees.
Employers located in federally-aligned jurisdictions will find the PWFA a change that provides reasonable accommodations for qualified employees. However, many states and localities have enacted enhanced protections to pregnant employees over the years. This may not be a significant change for employers in New York City.
What are the changes to the PUMP Act?
The PUMP Act, which is an extension of the FLSA, requires employers to offer reasonable breaks for breast milk express to their employees. All Employees, salaried or not, can be considered nonexempt workers. The law also makes clear that such breaks should be considered “hours worked” by an employee and thus appropriately compensated unless the employee is completely relieved of their duties during the entirety of the break. Employers must offer a private space for covered employees to express their breast milk. This must not include a bathroom. It must also be open to the public and free from co-workers. These breaks should be allowed from the date the need arises and for up to one year after the child’s birth. Employers with less than 50 employees may request an exemption from compliance if it would cause undue hardship to the business. The PUMP Act, which is similar to the PWFA allows employees to exercise their private rights of action once they have exhausted all administrative remedies. The PUMP Act may not be as significant for employers located in jurisdictions with similar or higher protections for nurses.
What’s the next step?
Employers should act quickly, even though the EEOC has been given two years to issue PWFA specific regulations. Examples of reasonable accommodations are included. Employers need to review and revise policies in order to make sure that pregnant women, children and other medical conditions are not considered as limitations that employers can reasonably accommodate. Employers should also train their managers and human resource professionals to be sensitive to the PWFA changes, including the need to, when, and how to, engage in an interactive process with qualified employees.
The PUMP Act’s enforcement provisions will not be in effect until April 28, 2023. However, the law is immediately effective. Employers who have not done so must ensure that there is adequate non-bathroom space available for employees to express their milk. Employers must ensure that nursing employees who aren’t exempt are paid for breast milk expressions during their paid breaks. No matter how many breaks they take to express breastmilk, exempt employees must be paid their full salary.
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