On December 29, 2022, President Biden signed two bills into law protecting pregnant and nursing mothers. These laws, the Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), expand employment protections for pregnant women, those who have pregnancy-related medical conditions, or who are nursing.
The PWFA will take effect on June 27, 2023, and requires employers with 15 or more employees to grant reasonable accommodations for “qualified” employees with temporary physical or mental limitations due to pregnancy, childbirth, or related conditions. A “qualified” employee is one that can perform the job’s essential functions with or without reasonable accommodation. Even if the employee cannot perform an essential function, they are still “qualified” if the inability to perform any essential function is for a temporary period, the essential function could be performed in the near future, and the inability to perform can be reasonably accommodated.
Like the Americans with Disabilities Act (ADA), the PWFA compels employers to provide reasonable accommodations unless doing so imposes an undue hardship. As under the ADA, the PWFA requires a good faith discussion between the employer and employee to identify a reasonable accommodation. Additionally, an employer may not require an employee to take paid or unpaid leave if another reasonable accommodation may be granted. In this way, one of the goals of the PWFA is to help pregnant workers remain productive in the workplace rather than placing them on leave.
Employers with strong compliance processes for the ADA may find the PWFA fairly easy to adapt to their current processes. Additional overlap may be found with state laws as well. In fact, thirty states already have statutes or executive orders guaranteeing pregnant employees’ reasonable accommodation in the workplace. Examples of reasonable accommodations that may be required under the PWFA include providing additional restroom breaks, reduced lifting, different sized uniforms and safety clothing, or providing a leave for an employee who does not qualify for a leave of absence under the Family and Medical Leave Act.
Be aware, however, that the PWFA goes even further than the ADA in key aspects such as the employee’s ability to perform essential functions of a job. The ADA doesn’t require accommodation if a disabled employee can’t complete essential tasks with or without accommodation. In contrast, the PWFA permits pregnant employees to temporarily not perform essential functions. This is a key difference that employers and their HR teams need to be aware of if they develop PWFA compliance documents based on their existing ADA documentation.
The EEOC, which enforces the ADA, is tasked with enforcing the PWFA as well. Regulations to enforce the PWFA are currently being drafted and are due to be finalized by the EEOC by December 29, 2023.
The PUMP Act, which went into effect immediately after signing (except for certain changes regarding remedies), applies to all employers; however those with less than 50 employees do not need to comply if it would cause an undue hardship. Employers such as air carriers are exempt from the PUMP Act requirements.
The PUMP Act amends the Fair Labor Standards Act (FLSA) and requires that employers provide certain accommodations for salaried employees (exempt employees) and other types of workers not covered under existing law. Employers must provide (1) reasonable break time for an employee to express breast milk each time the employee has the need, for one year after the child’s birth and (2) a place (other than a bathroom) that is covered and private in which the employee can express breast milk. Further, time spent to express breast milk must be considered hours worked if the employee is not completely relieved from duty during the break. If an employee is working or is interrupted during the break, the employee must be paid for the entire break.
The PUMP Act’s expanded coverage provisions take effect 120 days after signature – April 28, 2023.
Communication is Key
Leaders should communicate the changes these new laws will have with their organizations regularly. By making all employees, and especially managers of others, knowledgeable about the PWFA and PUMP Act requirements, employers will increase the chances of their organization avoiding unnecessary mistakes and legal liability. With new laws that impact individual employees in such personal ways, employers will need to make sure their managers have the professionalism and maturity to have frequent discussions with their workers on issues such as how long they might need to express breast milk or additional bathroom breaks for pregnant workers.
Once an accommodation is made, ongoing communication with the employee about how it is working is important for employers. Needs can change over time, such as if a lactation space was working for one worker, but new scheduling is needed if multiple employees request the same accommodation. Under the PWFA and PUMP Act, the dialogue for employers should be about what the employee needs and making them feel supported.
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