Responding to New Federal Employment Protections for Pregnant and Nursing Employees

Employers will soon be required to grant reasonable accommodations for pregnant and nursing workers after the Pregnant Workers Fairness Act (“PWFA”) and Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) were signed into law on Dec. 29, 2022. The two pieces of federal legislation address a longstanding gap in employment-discrimination laws and clarify what exactly is required of employers with respect to pregnant and nursing employees.

The Pregnant Workers Fairness Act

Effective June 27, 2023, the PWFA will require employers with 15 or more employees to provide temporary and reasonable accommodations to pregnant employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would impose an undue hardship. Under the PWFA, “known limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

Currently, employers must only comply with the Pregnancy Discrimination Act (the “PDA”), which prohibits employers from making adverse employment decisions on the basis of pregnancy. The PDA does not, however, guarantee accommodations for pregnant workers. Instead, employers only needed to accommodate pregnant workers to the extent that comparable accommodations were provided to similarly situated, non-pregnant employees.

Modeled after the Americans with Disabilities Act of 1990 (the “ADA”), the PWFA adopts the same definition of “reasonable accommodation” and “undue hardship,” and therefore, requires that employers engage in the interactive process to determine a reasonable accommodation. Examples of reasonable accommodations may include light duty, including lifting restrictions; additional or longer breaks; restrictions on standing for long periods; a change in uniform or work schedule; or more frequent bathroom breaks.

Employers are also prohibited from (1) denying employment opportunities to pregnant applicants in order to avoid providing a reasonable accommodation; (2) requiring qualified employees to take paid or unpaid leave if reasonable accommodations can be provided; and (3) retaliating against an employee who requests or uses a reasonable accommodation.

The PUMP Act

The PUMP Act amends employer obligations under the Fair Labor Standards Act (“FLSA”) by requiring that employers provide reasonable break time, and a private location, for employees to express breast milk for two years following the birth of a child. More specifically, the employer must provide a private location (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public.

Although employers were previously required to provide such accommodations to nonexempt employees, the PUMP Act expands these protections to all breastfeeding employees, including salaried employees and other workers not covered under existing law. However, employers with less than 50 employees may be exempt from complying with such requirements if doing so would impose an undue hardship by causing the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

The PUMP Act’s provisions regarding expanded access took effect on Dec. 29, 2022. However, amendments to available remedies will become effective on April 28, 2023.

Next Steps and Best Practices for Employers

Although the PWFA and PUMP Act significantly expand federal protections for pregnant employees, approximately 30 states previously adopted laws that require employers to provide similar accommodations to pregnant and nursing workers. Regardless of state law, employers should consider taking the following steps to ensure that their conduct and policies comply with the PWFA and PUMP Act.

1. Remove or modify any policies or programs that benefit non-pregnant workers and/or exclude pregnant workers that may have been justified under the PDA or previous federal or state case law.
2. Review and revise your reasonable accommodations policy as necessary. If your current pregnancy accommodation policy is based on ADA principles, ensure that it complies with the minimum standards set by the PWFA, such as the need to consider temporarily waiving an essential job function as an accommodation. Keep in mind that the PWFA and PUMP Act do not preempt more generous state and local laws.
3. Create and implement a process to follow when an employee requests an accommodation due to pregnancy-related limitations, including procedures for requesting, evaluating, and providing reasonable accommodations. This may consist of simply enhancing your current process for reviewing accommodation requests to include requests related to pregnancy, childbirth, and related medical conditions.
4. Train managers, supervisors, and Human Resources personnel on the employer’s obligation to provide a reasonable accommodation under the PWFA and PUMP Act, including how to recognize when an employee is requesting an accommodation and how to recognize when an employee’s pregnancy may conflict with her work requirements.
5. Train supervisors and managers involved in interviewing applicants to avoid asking questions aimed at the applicant’s pregnancy status.
6. Don’t forget to engage in the interactive process! Be sure to communicate with the employee—not just HR—to identify potential reasonable accommodations related to pregnancy, childbirth, and other covered medical conditions.
7. Remember that the employer does not have to provide the exact accommodation the employee or job applicant wants. However, when possible, it is good practice to give primary consideration to the employee’s preference.
8. Act promptly in response to requests for reasonable accommodations in order to allow pregnant employees to continue working without sacrificing the chance for a healthy pregnancy and delivery.
9. Document the interactive process by memorializing conversations between the employer and individual requesting accommodation. In some instances, this may consist of the employee’s failure to engage in the interactive process and the employer’s efforts to contact the employee in such circumstances.
10. Update any break and timekeeping policies to ensure compliance with the PUMP Act.

Remember that the PWFA goes into effect June 27, 2023. In the meantime, employers should work closely with counsel to update their policies and understand their obligations in response to the PWFA and PUMP Act.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is it intended to be a substitute for professional legal advice.