Late last year, Congress passed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). While both were signed into law in December 2022, the PWFA is effective June 27, 2023, and the PUMP Act is effective April 28, 2023. Both laws expand the protections for pregnant employees and applicants, those individuals with related conditions, and nursing mothers. The key points of these new laws are discussed below.
Steps to ensure compliance with the PWFA and PUMP Act:
Review and update accommodation policies to be compliant with the PWFA and applicable state or local laws. Confer with counsel to ensure compliance;
Train HR and supervisors on the PWFA requirements and how to recognize requests for an accommodation and provide a refresher on the process for providing break time and private spaces to express breast milk;
Check out the EEOC website (opens a new window) for updates on PWFA regulations and FAQs;
Review and update break and time-keeping policies and practices to reflect the requirements of the PUMP Act;
Find and designate a private space for nursing mothers to express breast milk in compliance with the FLSA; and
Update workplace lactation policy so that it applies to all employees and provides for notice and cure period allowed under the PUMP Act.
Pregnant Workers Fairness Act (PWFA)
The PWFA is designed to close the existing gap between the protections afforded to workers affected by pregnancy through the Pregnancy Discrimination Act (PDA) and accommodations available through the Americans with Disabilities Act (ADA). Specifically, the PWFA will extend “reasonable accommodations” to pregnant workers and applicants with known limitations arising as a result of pregnancy, childbirth, or a related medical condition absent an “undue hardship.”
If these terms sound familiar, it’s because they mirror those in the ADA. The Equal Employment Opportunity Commission (EEOC) – which enforces the ADA – will also enforce the PWFA. The EEOC is tasked with issuing regulations to include further guidance about the PWFA by the end of December 2023. In the interim, the EEOC addresses frequently asked questions here (opens a new window).
While the PWFA is similar to the ADA in many respects, it is also more expansive to fill the aforementioned “gap.” The PWFA requires employers with 15 or more employees to make reasonable accommodations to a “qualified employee” with “known limitations” related to pregnancy, childbirth or known medical conditions. An employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position is a “qualified employee.” Unlike the ADA, under the PWFA an employee or applicant shall be considered qualified if –
Any inability to perform an essential function is for a temporary period;
The essential function could be performed in the near future; and
The inability to perform the essential function can be reasonably accommodated.
The PWFA defines a “known limitation” as:
A physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the [ADA] definition of disability.
Covered employers will engage in the interactive process with the qualified employee to identify a reasonable accommodation (e.g. a change or adjustment to the workplace or the way things are usually done at work). The PWFA does not specify potential reasonable accommodations and directs the EEOC to issue regulations that include examples of reasonable accommodations. In the interim, the EEOC’s current FAQs point to examples of possible reasonable accommodations provided by the House Committee on Education and Labor Report on the PWFA (opens a new window). These reasonable accommodations include: the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” – significant difficulty or expense – on the employer’s operations.
Lockton comment: While there are similarities between the ADA and PWFA, there are some significant distinctions between the two laws. For example, if an employee is temporarily unable to perform an essential job function of their job due to a disability, the employer can require the employee to take leave as an accommodation under the ADA until they are able to fully perform that function. The ADA does not require an employer to waive or modify essential job duties. However, under the PWFA, the employer must consider temporarily waiving that essential job function as an accommodation and permit the pregnant employee to continue working in that role. This is due to the broader definition of “qualified individual” in the PWFA and the fact that it prohibits an employer from preferencing leave as an accommodation over adjustments that permit an employee to continue working.
Under the PWFA, it is an unlawful employment practice for a covered employer to:
Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.
The remedies available to aggrieved employees and applicants of private employers mirror those of Title VII. They include reinstatement, back pay, front pay, compensatory damages, punitive damages, as well as reasonable attorney’s fees and costs.
Many employers may operate in a state or locality with an existing law already affording similar protections to pregnant employees and applicants. To date, more than 30 states and a handful of localities have enacted laws similar to the PWFA, which protect pregnant workers and applicants. See the Department of Labor map identifying state laws here (opens a new window). The PWFA does not preempt these existing laws to the extent that they may afford an employee greater protection than the PWFA.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
Effective April 28, 2023, the PUMP Act expands federal workplace protections for lactating employees by requiring employers covered by the FLSA to provide all employees, both hourly and salaried, who are nursing with a private location (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public, along with reasonable break time for one year following the birth of a child. Remote employees are eligible to take pump breaks on the same basis as other employees. Workers who telework must also be free from observation by any employer-provided or required monitoring system, including computer camera, security camera, or web conferencing platform.
Small employers (less than 50 employees) may avoid complying if they can establish that doing so would impose an undue hardship such as significant difficulty or expense if forced to comply. All employees who work for an FLSA covered employer, regardless of work site, are counted. Employers are rarely successful at proving undue hardship. In almost all situations, employers with fewer than 50 employees must provide the required break time and space.
What is reasonable break time?
For one year after the child’s birth, covered employees may take “reasonable break time” each time such employee has need to express the milk. An employer may not deny a covered employee a needed break to pump. The frequency and duration will vary from employee to employee and may even change day-to-day based on the need of the nursing employee and child. Factors such as the location of the space and the steps reasonably necessary to express breast milk, such as pump setup and cleanup, can also affect the duration of time an employee will need to express milk.
Examples of "reasonable break time" provided by the Department of Labor:
Four 25-minute breaks each day
Two 30-minute breaks each day
FLSA Refresher: When is break time paid?
The PUMP Act is a reminder to employers that break time is compensable if it does not meet the FLSA or state standard for unpaid time. For example, breaks are non-compensable only if they extend for 30 minutes or more and the employee is completely relieved from duty for the entire break period. Therefore, if an employee is checking email or participating in meetings virtually during a nursing break, the time is compensable.
The rule of thumb is that an employee using break time at work to express milk must be completely relieved from duty; or must be paid for the break time.
Further, when employers provide paid breaks, an employee who uses such break time to pump breast milk must be compensated in the same way that other employees are compensated for break time.
Lactation room requirements: Private clean non-bathroom space
The PUMP Act requires employers to provide a private clean space for use by nursing employees. The space must be shielded from view, and free from any intrusion from co-workers and the public. Often “private” is interpreted to require a lock on the door, but some companies use signage and mobile screens or tall cubicle areas to ensure privacy. An employer may create or convert a temporary space for expressing milk, or make a space available when needed, by the nursing employee. The location provided must be functional as a space for expressing breast milk. Employers may need to provide more than one space depending on the number of nursing employees and their work schedule. If the space is not dedicated to the nursing employees’ use, it must be available when the employee needs it. Employers may also choose to create permanent, dedicated spaces for employees to express breast milk.
Best Practices: Besides a chair, electrical outlet, and a flat surface for pumping equipment, consider providing the following to support nursing employees:
Cleaning supplies (Clorox wipes, paper towels)
Small refrigerator designated for expressed milk
Sink with running water close by
Breast pumps provided on-site
Lockers or a storage space for belongings
Comfortable seating (recliners)
White noise machine
Violations under the PUMP Act
Employees may file a complaint with the Department of Labor for violations of the PUMP Act, but only after providing notice to their employer and allowing a 10-day cure period. This notice period is waived and employees can file a complaint immediately if: (1) the employee has been terminated for requesting break time or lactation space, (2) the employee was terminated for opposing an employer’s refusal to provide the protections required under the law, or (3) if the employer indicated it will not provide a private place or reasonable break time and has no intention of doing so in the future.
Lockton comment: Violations of the PUMP Act can be costly. An employer who 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. Remedies may include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages, and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate. These remedies are available regardless of whether the employee has also experienced retaliation.
Additionally, just as under the FLSA, employees are protected from retaliation for bringing an internal complaint, either orally or in writing, to an employer or filing a complaint with the Department of Labor alleging a violation of the PUMP Act.
Greater Protections under State & Local Laws, Union Contracts
Employers should make sure they are also familiar with applicable state law and/or local ordinances that may impose similar or more stringent requirements with respect to nursing employees. Workplace breastfeeding rights are often expanded at the state-level. Currently, 28 U.S. states, the District of Columbia (DC), and Puerto Rico have laws related to supporting nursing women at work. This map provided by the Department of Labor provides information about state-level protections that may be available. (opens a new window) Some employers may need to comply with union regulations for their workplace. There will also be situations when the ADA is applicable.
If you have additional questions, please contact your Lockton account team.