WHAT EMPLOYERS NEED TO KNOW ABOUT THE PREGNANT WORKERS FAIRNESS ACT AND PUMP ACT
By: Dalton Darnell, Summer Associate
The past few months have seen massive changes in federal employment law concerning pregnancy in the workplace. Congress recently passed the Pregnant Workers Fairness Act (PWFA)—which requires employers to provide reasonable accommodations to employees that are pregnant or have recently given birth—and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)—which requires employers to provide employees with a private place to express breast milk for up to a year after childbirth.
Employers must be aware of this new legislation, have a plan in place to maintain compliance, and update any handbook policies addressing these subjects. This blog post will briefly overview the Acts and what employers need to know moving forward.
Pregnant Workers Fairness Act
Who Does the PWFA Apply to?
Employees covered under the PWFA include private and public sector employers with at least 15 employees, and certain government entities and labor organizations.[1]
What Does the PWFA Require from Employers?
The PWFA requires employers to provide reasonable accommodations for employees with known limitations related to pregnancy, childbirth, or related medical conditions.[2] Known limitations are defined as “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of a disability from the ADA.”[3]
Which Physical or Mental Conditions are Included?
Although the PWFA does not define worker limitations arising from pregnancy, childbirth, or related medical conditions, courts have considered the same phrase in interpreting Title VII of the Civil Rights Act of 1964.[4] Under Title VII, various courts have interpreted the phrase broadly to cover: complications during pregnancy, nausea, lifting restrictions, recovery from childbirth (including caesarian section), postpartum depression, and—in some cases—fertility treatment, lactation, and abortion.[5]
What is a Reasonable Accommodation?
What constitutes a reasonable accommodation will differ depending on an employee’s position and job responsibilities for each employer. The EEOC and the House Committee on Education and Labor Report on the PWFA have provided the following examples of possible reasonable accommodations:
The ability to sit down or drink water;
Receiving closer parking;
Having flexible hours;
Receiving appropriately sized uniforms and safety apparel;
Receiving additional break time to use the bathroom, eat, and rest;
Telework opportunities;
Temporary reassignment;
Leave for appointments with health care professionals, recovery from childbirth, or other reasons related to pregnancy, childbirth, or related medical conditions; or
Being excused from strenuous activities or activities involving exposure to compounds unsafe for pregnancy.[6]
Generally, all employers must offer flexibility regarding work schedules, allowing breaks, and leave for pregnancy or childbirth-related matters. Even if employees have exhausted all leave they are otherwise entitled to under the Family and Medical Leave Act, state laws, or employment policies; they may still request leave as a reasonable accommodation under the PWFA.[7]
What Does the PWFA Prohibit?
In addition to the requirement to provide reasonable accommodations, covered employers cannot:
Require employees to accept an accommodation without any discussion about the accommodation between the employee and the employer;
Deny jobs or other employment opportunities to qualified employees or applicants based on their need for a reasonable accommodation;
Require employees to take leave if another reasonable accommodation can be provided instead that would enablethe employee to keep working;
Retaliate against any individuals for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.[8]
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
To Whom Does the PUMP Act Apply?
The PUMP Act applies to all employers covered by the Fair Labor Standards Act (FLSA),[9] including private employers engaged in interstate commerce with an annual dollar volume of sales or business of at least $500,000, among others.[10]
What Does the PUMP ACT Require?
Under the PUMP Act, employers must provide nursing employees with “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,” for up to a year after the birth of a child.[11]
Is Providing Access to a Bathroom Enough Under the PUMP Act?
No. Importantly, the EEOC has stated that “a bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk.”[12] The designated area does not have to be solely used for such purposes but must be available when employees need it, shielded from view, and free from intrusion.[13]
Undue Hardship Exception
Undue Hardship under the PWFA.
Like the Americans with Disabilities Act (ADA), the PWFA provides that employers do not have to provide accommodations that would impose an “undue hardship” on the operation of their business.[14]
Undue Hardship under the PUMP Act.
Similarly, employers with fewer than 50 employees are not subject to the PUMP Act break time and space requirements if compliance with the provision would impose an undue hardship.[15]
What is Undue Hardship?
The PWFA and PUMP Act are new and mostly untested legislation. Still it is reasonable to assume that “undue hardship” under these Acts will be interpreted similarly to undue hardship in other contexts. Under the ADA, the EEOC has found undue hardship to mean “significant difficulty or expense.”[16] In determining whether an accommodation causes undue hardship, the EEOC focuses on “the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.”[17] The EEOC has found that “undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”[18] The EEOC has found that “whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.”[19]
Whether an accommodation is reasonable or an undue hardship can be a difficult and fact-specific determination. Given the potential consequences of denying an accommodation, employers should contact experienced legal counsel for guidance if they believe a requested accommodation falls within the undue hardship exception.
Conclusion
As federal employment laws change, so too must employment policies and practices. Employers should begin making plans to implement policies to ensure compliance with these and other applicable federal and state employment laws.
The experienced team at Meridian Law is available to discuss your rights and obligations under federal and state employment laws and answer any questions that may arise as you work to implement new policies. Please do not hesitate to contact our team with any questions by telephone at (615) 229-7499, by email at info@meridian.law, or through our contact form at www.meridian.law.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Meridian Law, PLLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
[1] See, e.g., 42 U.S.C.A. § 2000gg(2)(B).
[2] Learn more at What You Should Know About the Pregnant Workers Fairness Act, www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
[3] 42 U.S.C.A. § 2000gg(4).
[4] 42 U.S.C. §§ 2000e et seq.
[5] New Federal Protections for Pregnant and Nursing Workers (April 28, 2023), https://crsreports.congress.gov/product/pdf/IF/IF12392.
[6] What You Should Know About the Pregnant Workers Fairness Act, www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act; H. Rept. 117-27; EEOC's Pregnant Workers Fairness Act. What Employers Need to Know Webinar; https://www.youtube.com/watch?v=ftxYyTlXetE.
[7] EEOC's Pregnant Workers Fairness Act. What Employers Need to Know Webinar; https://www.youtube.com/watch?v=ftxYyTlXetE.
[8] What You Should Know About the Pregnant Workers Fairness Act, www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
[9] Frequently Asked Questions – Pumping Breast Milk at Work, https://www.dol.gov/agencies/whd/nursing-mothers/faq.
[10] For more information, please see: Fact Sheet #14: Coverage Under the Fair Labor Standards Act, https://www.dol.gov/agencies/whd/fact-sheets/14-flsa-coverage.
[11] Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work, https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers.
[12] Id.
[13] Id.
[14] 42 U.S.C.A. § 2000gg-1(1).
[15] Frequently Asked Questions – Pumping Breast Milk at Work, https://www.dol.gov/agencies/whd/nursing-mothers/faq; see also 29 U.S.C.A. § 218d (c)(“An employer that employs less than 50 employees shall not be subject to the requirements of this section, if 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.”).
[16] Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.
[17] Id.
[18] Id.
[19] Id.