On December 29, 2022, President Biden signed into law The Pregnancy Fairness Workers Act (PFWA) and the Providing Urgent Maternal Protections (PUMP) Act. These recent federal laws provide New Protections Required for Pregnant and Nursing Employees – and employers need to be aware of the new legal requirements.

New Protections Required for Pregnant and Nursing Employees

PFWA

The PFWA takes effect June 27, 2023, and covers employers with 15 or more employees. The PWFA, modeled on The Americans with Disabilities Act (“ACT”), closes some gaps left by the Pregnancy Discrimination Act (PDA) by providing expanded protections for pregnancy-related conditions like severe morning sickness, preeclampsia, and other serious conditions.

In light of the passage of PFWA, what’s expected of employers?

  • Make reasonable accommodations for “the known temporary limitations” to employees’ and job applicants’ abilities to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions unless an employer can show that it would pose an undue hardship.
  • Do not deny employment opportunities to women based on their need for a reasonable accommodation related to pregnancy, childbirth, or related medical conditions.
  • Do not force a qualified employee to accept an accommodation other than a reasonable accommodation arrived through an interactive process.
  • Do not require paid or unpaid leave if a reasonable accommodation could be provided.
  • Do not take adverse action or retaliate in terms, condition, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

Employers should look for regulations that will be issued by the EEOC that will provide examples of reasonable accommodations for pregnancy/childbirth-related conditions.  The regulations will be in proposed form, and there will be a comment period before the regulations are final. Some examples of accommodations that may be required under the PFWA include providing additional restroom breaks, reducing lifting restrictions and providing different office equipment. Employers should be aware that the new law will not pre-empt state laws that provide greater protections. Employers should update employee handbooks or policies to ensure they are in compliance with both the new law and the states in which they operate or have employees located.

PUMP

The PUMP Act amends the Fair Labor Standards Act (FLSA) and took effect immediately on being signed into law on December 29, 2022, by President Biden. The PUMP Act requires employers with 50 or more employees to provide employees with reasonable break time, including salaried employees, to express breast milk as needed for up to a two-year period after the child’s birth. The employer’s obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom) remains unchanged under this new law.

While the legislation went into effect immediately after its signing, the enforcement provision includes a 120-day delay, making the effective date for that provision April 28, 2023. Also, there is a three-year delay in the implementation for railway workers, and due to industry opposition, the law does not apply to flight attendants and pilots.

What changed under PUMP for nursing mothers?

Except for flight attendants and pilots, the PUMP Act covers all employees, not just non-exempt workers. The break time may be unpaid unless otherwise required by federal or state law or municipal ordinance. The PUMP Act also provides additional protections to pump whenever needed, not just one year after birth as required under the Fair Labor Standards Act (FLSA).

Under the Act, the time spent to express breast milk must be considered hours worked if the employee is working while expressing milk unless otherwise required by federal, state or local law.

Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense.

What should employers do?

  • Educate your HR team and front-line managers on the update to the law and refresh them on the process for providing break time and private spaces to express breast milk.
  • As with the PWFA, the law does not preempt state law or municipal ordinances that provide greater protection than provided by the PUMP for Nursing Mothers Act.
  • Depending on where employees are located, policies, practices, and the private space provided to express breast milk may need to be modified.

If you have any questions regarding compliance with these new laws in your business, please contact our team at Erigo Employer Solutions.  As a fully integrated HR team, these questions are our specialty, and we’re here to help.

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