- Emergency Consultation Services
- Risk Management Services
- Who We Are
- Our People
- What We Do
- Why We Are Different
- What’s New
- Where We Are
Two new federal laws aimed at increasing protections for pregnant and breastfeeding employees will go into effect in 2023: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP For Nursing Mothers Act”). Employers should familiarize themselves with the new employee protections and employer obligations under both laws.
The Pregnant Workers Fairness Act
The PWFA appears to substantially increase protections for employees and job applicants with known limitations relating to pregnancy, childbirth, or related medical conditions. It applies to employers with 15 or more employees and will go into effect on June 27, 2023.
The PWFA closes gaps in federal discrimination laws in two ways:
Moreover, PWFA prohibits employers from:
There are a lot of open questions on how the PWFA will apply to a variety of fact patterns, including what is a “related medical condition.” For now, however, employers need to be aware of the upcoming obligations that begin late June, 2023 so they can at least further assess employee situations as they come up that may fall under the PWFA. The PWFA also directs the EEOC to issue regulations specifically providing examples of reasonable accommodations related to an employee’s pregnancy, childbirth, or related medical conditions.
Employers should note that the PWFA diverges from the ADA in one important respect – it defines a “qualified” employee or applicant as including:
Therefore, under the PWFA, the employer may need to temporarily reassign the employee’s duties to another employee, or put them on hold, where possible, until the conclusion of the pregnancy, childbirth, and/or related medical condition.
The PUMP For Nursing Mothers Act
Effective December 29, 2022, the PUMP For Nursing Mothers Act amended the Fair Labor Standards Act (“FLSA”) to entitle all employees (not just non-exempt employees) to unpaid reasonable break time to express breast milk up to one year after the employee’s child’s birth. The Act requires that breaks be provided “each time such employee has need to express the milk.”
The Act also requires employers to provide a private location to express milk that is not a bathroom. Employers should be aware that an employee must be compensated for pumping breaks if such a break must be paid according to other federal, state or local laws; the employee is not completely relieved of duties during the entirety of the break; or if they express breast milk during an otherwise paid break period.
The PUMP for Nursing Mothers Act contains a small employer exception for employers with fewer than 50 employees where compliance would cause an undue hardship.
Employers should respond to the PWFA and Pump for Working Mothers Act by: