Years of determined activism on behalf of pregnant and breastfeeding working women culminated in a major victory in December with the passage of two long-sought pieces of federal legislation. Signed into law by President Biden on December 23, 2022, as part of the bipartisan omnibus spending bill, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act will impose new federal requirements on most employers regarding accommodations for pregnancy- and childbirth-related conditions and nursing mothers. While enacting these laws is a significant advancement, much remains to be done to create a truly fair and equitable workplace for pregnant women and new moms.
Pregnant Workers Fairness Act
Mirroring yet expanding the protections and rights in the Americans with Disabilities Act (ADA), the PWFA requires private employers with 15 or more employees to make reasonable accommodations for employees with a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Effective on June 27, 2023, the new law fills in a significant legislative gap, as pregnancy was not considered a “disability” under the ADA, and thus employers were not required to make reasonable accommodations for many common pregnancy-related conditions under that statute
As they must do under the ADA, employers must engage in an interactive process with a “qualified employee” covered by the PWFA to find a reasonable accommodation that does not impose an undue hardship on the employer. A “qualified employee” is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.
Additionally, the PWFA makes it a prohibited employment practice to:
- Deny employment opportunities based on the employer’s need to make reasonable accommodations to a qualified employee;
- Require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee who requests or avails themself of such reasonable accommodations.
Remedies for private-sector employees are the same as those provided under Title VII of the Civil Rights Act of 1964, including reinstatement, back pay, front pay, compensatory damages, punitive damages, and reasonable attorneys’ fees and costs.
The PWFA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the law within two years of its enactment, including providing examples of reasonable accommodations. While reasonable accommodations for pregnant workers under the PWFA will likely look similar to accommodations for employees with other ADA-protected conditions, they may be easier to make and, thus, less likely to cause an employer undue hardship because they will usually be temporary.
Amending the Fair Labor Standards Act, the PUMP Act expands workplace protections for new mothers by requiring employers to provide all nursing employees with reasonable time and a private space (other than a restroom) to express breast milk for up to one year after the child’s birth. While such protections existed before the PUMP Act, they did not cover salaried workers. Now, all lactating women, regardless of exempt or non-exempt status, can avail themselves of these rights.
While employees are not entitled to compensation during breaks if they are not performing any work, the breaks are considered “hours worked,” for which the worker must be paid if they are not completely off duty for the break’s entirety.
Employers with less than 50 employees may be exempt from compliance with the PUMP Act’s requirements if they can show that doing so would impose an undue hardship. Additional exemptions apply to crewmembers of air carriers, rail carrier crews, and motorcoach services operators.
Employees who allege their employer failed to abide by the act’s requirements regarding a private area to express milk must notify their employer of the alleged failure, after which the employer has ten days to remedy the situation. That notification period is waived if the employee was terminated in retaliation for requesting a place to pump milk or objecting to the employer’s failure to provide such a space or if the employer indicated it would not provide a private place.
Remedies for employees under the PUMP Act include the payment of unpaid wages, reinstatement, front and back pay, and liquidated damages. The law’s provisions regarding breaks and private spaces became effective upon its enactment, while its remedy provisions become effective and available on April 28, 2023.
As noted, the passage of these laws was largely the result of activism by advocacy groups such as A Better Balance (ABB), which works “to advance justice for workers so they can care for themselves and their loved ones without jeopardizing their economic security.” Outten & Golden has provided financial support to ABB every year since its inception over 15 years ago, and several of its attorneys have served on the organization’s board. We congratulate them on their achievement and celebrate the passage of these laws as part of ongoing efforts on behalf of working mothers.