The Consolidated Appropriations Act that was signed into law by President Biden on December 29, 2022, contained two new laws that provide significantly increased protections for pregnant and nursing mothers. A summary of the two laws is set forth below.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) extends pregnant employees protections that are similar to those provided to disabled employees under the Americans with Disabilities Act (ADA). The law applies to employers with at least 15 employees, and its protections apply to an employee or applicant who can perform the essential functions of the job with or without a reasonable accommodation, including an employee or applicant (1) whose inability to perform an essential function is for a temporary period; (2) who could perform an essential function in the near future; and (3) whose inability to perform the essential function can be reasonably accommodated.
Under the PWFA, employers must:
- Make reasonable accommodations to an individual’s known limitations related to pregnancy, childbirth, or related medical conditions, unless an employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business;
- Use the interactive process established under the ADA to identify reasonable accommodations for individuals affected by pregnancy, childbirth, or related medical conditions;
- Not deny employment opportunities to an individual based on the need for the employer to make reasonable accommodations for known limitations related to that individual’s pregnancy, childbirth, or related medical conditions;
- Not require an individual to take a paid or unpaid leave if another reasonable accommodation can be provided to known limitations related to the pregnancy, childbirth, or related medical conditions of that individual;
- Not take adverse employment action against an individual because the individual requests or uses a reasonable accommodation to known limitations related to the pregnancy, childbirth, or related medical conditions.
The PWFA effectively requires employers to use the ADA’s interactive process to determine whether reasonable accommodations are available for employees or applicants who have temporary work limitations due to pregnancy, childbirth, or a related medical condition. Employers should make sure that their managerial and human resources staff members are familiar with the PWFA’s requirements, and have processes in place to handle requests for accommodation related to pregnancy, childbirth, or related medical conditions. As it relates to applicants, pregnancy status should not be analyzed as an element of an applicant’s ability to perform the essential functions of a position. Rather, once an offer of employment is made, then a reasonable accommodation dialogue should be entered into if the individual indicates they are in any way limited in their ability to perform essential job duties.
The PWFA takes effect on June 27, 2023.
The Pump Act
With immediate effect, the Pump Act strikes the protections for non-exempt nursing mothers that were added to the Fair Labor Standards Act in 2010 under the Patient Protection and Affordable Care Act (PPACA), and replaces them with similar protections applicable to all employees. Like the previous PPACA protections, the Pump Act requires an employer to (1) provide reasonable break time for an employee to express breast milk for the employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk, and (2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
An employer is not required to compensate an employee receiving reasonable break time under the Pump Act for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance. The Pump Act also clarifies that break time provided under the Act shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.
As with the previous PPACA protections, an employer that employs less than 50 employees is not subject to the requirements of the Pump Act if it can demonstrate that such requirements 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 does not preempt state or municipal ordinances that provide greater protections to employees than the protections provided under the Pump Act.
If you have any questions about how the PWFA or the Pump Act will affect your organization, please call our office. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to provide legal advice. If you have questions or would like more information about how these developments may affect your business, please contact us at (570) 341-8800.