Congress Passes Pregnancy-Accommodation Statute and Updated Nursing Mothers Law: What Employers Need to Know


Tender moment woman breast feeding baby

By: R. Victoria Fuller and Emily Kowalik

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:

  • Discrimination. The PWFA specifically prohibits discrimination against employees and applicants with known limitations relating to pregnancy, childbirth, or related medical conditions.
  • Reasonable Accommodations. The PWFA entitles covered employees to a reasonable accommodation unless the accommodation would impose an undue hardship on the operations of the employer. As with other disabled employees, the employer must engage in the interactive process with the employee in order to discuss and determine the reasonable accommodation. The obligation to engage in the interactive process is triggered when the employer becomes aware of an employee’s “known limitation” arising out of a pregnancy, childbirth, or related medical condition.

Moreover, PWFA prohibits employers from:

  • Dictating the accommodation to the employee, including forcing the employee to take paid or unpaid leave. The employer must engage in the interactive process;
  • Refusing to hire or provide other employment opportunities to a qualified employee if the denial is based on the need to make a reasonable accommodation; and
  • Retaliating against an employee for requesting or using a reasonable accommodation related to the employee’s pregnancy, childbirth, or related medical conditions.

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:

  • An employee or applicant who cannot perform an essential function of the job for a temporary period, where;
  • The essential function could be performed in the near future; and
  • the inability to perform the essential function can be reasonably accommodated.

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.

Employer Takeaways

Employers should respond to the PWFA and Pump for Working Mothers Act by:

  • Updating Policies and Procedures. Employers should promptly update EEO policies and reasonable accommodation procedures as necessary to reflect the new protections provided by the PWFA and the PUMP for Working Mothers Act. Note that neither law is preempted by state or local laws that provide greater protections to employees.
  • Training. Employees should train Human Resources professionals and all company managers to ensure they are aware of the new laws and updated policies and procedures for responding to covered employees. In particular, managers should be aware that, under the PWFA, covered employees who cannot perform the essential functions of their job are still entitled to a reasonable accommodation so long as the additional criteria noted above are met.
  • Identify a Private Space for Breastfeeding Mothers. Employers should endeavor to establish a location and/or plan to accommodate breastfeeding mothers, particularly where a private locked room may not be available in the workplace.

For more information, please contact R. Victoria Fuller, Emily Kowalik, or your local FMG attorney.