New Laws Protect Pregnant, Post-Partum Employees

Female with baby in living room setting.

On December 29, 2022, President Biden signed into law two bills that add protections for pregnant and post-partum employees. Here is what we know.

Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act amends the Fair Labor Standards Act (FLSA) to expand coverage to all employees (exempt and non-exempt). Employers are required to provide employees with a private place (other than a bathroom) and a reasonable break time to express breast milk for one year after the birth of a child. 

The coverage of all employees is effective immediately, but employers have until April 28, 2023 to provide a secluded area for employees. 

If your employee is not completely relieved from duty while expressing breast milk, it’s considered “hours worked” under the FLSA. 

Another notable feature is that affected employees must notify their employer of a failure to provide a suitable place to pump. Then the employee has to allow the employer ten days to remedy before they can take legal action. If the employer refuses to provide a private place to pump or retaliates against an employee for making the request or opposing the employer’s refusal, the grace period is waived.

The PUMP Act also clarifies that the same damages available under other provisions of the FLSA are available for PUMP Act violations, including unpaid wages, reinstatement, back and front pay, and liquidated damages.

According to the Department of Labor (DOL), Employers with fewer than 50 employees may be eligible for a hardship exemption if complying would cause the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

How employers can remain compliant
  • Ensure your HR team and leaders are update-to-date on the law and the process for providing break time and a private area to express breast milk.
  • Know that the law does not preempt state law or municipal ordinances that give greater protection than provided by the PUMP Act. Your policies, practices, and the private location provided to express breast milk may need to be modified depending on an employee’s location.
  • Creativity is the key to developing staffing solutions and providing private spaces for nursing mothers to express breast milk. The law doesn’t require a permanent space. A temporary space that shields a nursing mother from view and intrusion from coworkers or the public is sufficient. 

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) provides pregnant employees and applicants the same protections available for disabled workers under the Americans with Disabilities Act of 1990 (ADA), but temporarily.

The PWFA takes effect on June 27, 2023, and will be enforced by the Equal Employment Opportunity Commission (EEOC). 

It requires employers with 15 or more employees to grant reasonable and temporary accommodations to employees and applicants for known limitations related to pregnancy, childbirth, and related medical conditions.

The PWFA mirrors other aspects of the ADA:

  • It requires employers to engage in the interactive process with employees to craft a reasonable accommodation (if one is available and doesn’t impose an undue hardship) that will allow the employee to perform the essential functions of their job. 
  • The Act prohibits employers from requiring a qualified employee to take leave if a reasonable alternative accommodation is available. 
  • Employers can’t deny employment opportunities or otherwise take adverse action on terms, conditions, or privileges of employment against a qualified employee for requesting or using a reasonable accommodation.

The Act also directs the EEOC to issue guidance within the next two years describing examples of reasonable accommodations for pregnant workers.

If you have any questions about these new laws, contact your HR business partner for guidance.

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