Attorney Harrison Oldham

On December 29, 2022, President Biden signed the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) into law. Both bills received bipartisan support and support from business groups and worker advocates. The PUMP Act took effect immediately, while the PWFA will go into effect in June 2023. Below, we will take a brief look at each in an effort to help employers familiarize themselves with the new legal obligations under these two acts so that they may revise their policies and procedures accordingly.

The Pregnant Workers Fairness Act

Currently, 30 states and the District of Columbia have pregnancy-related accommodation laws in place.  However, the PWFA enacts protections on the federal level.  As such, even employers located in a state with a current pregnancy accommodation law will need to familiarize themselves and comply with the PWFA, as the PWFA may provide greater protections for employees than state law.

Effective on June 27, 2023, the PWFA shares many parallels with the Americans with Disabilities Act (“ADA”).  Like the ADA, employers with at least 15 employees will be subject to the requirements of the PWFA, and state employers are prohibited from claiming sovereign immunity from claims brought for violations.  Additionally, the PWFA provides that covered employers must provide qualified pregnant workers with reasonable accommodations to allow them to perform the essential functions of their positions.

The PWFA adopts the ADA’s definition of a “reasonable accommodation” (i.e., an arrangement to accommodate the pregnant worker’s limitations that does not impact the essential functions of the job).  Mirroring the requirements of the ADA, covered employers must engage in an interactive process with pregnant workers who request a reasonable accommodation.

Under the ADA, a reasonable accommodation is a modification or adjustment to the work environment that allows employees with a disability to perform the essential functions of their job.  However, an employer’s obligation to accommodate under the ADA is limited to accommodations that will not impose an “undue hardship” on the employer.  The PWFA similarly requires employers to provide a “reasonable accommodation” to applicants and employees with “known limitations related to the pregnancy, childbirth, or related medical conditions,”  unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business. The PWFA also adopts the ADA’s definition for the employer’s undue hardship defense.

Under the PWFA, it is an unlawful employment practice for an employer to fail to provide a reasonable accommodation to a pregnant worker. However, the PWFA provides a good faith defense to liability for damages if an employer demonstrates a genuine effort to work with an employee to find a reasonable accommodation that would provide an equally effective opportunity for the employee without causing undue hardship to the employer.  Finally, the PWFA protects workers seeking a pregnancy-related accommodation from retaliation and prohibits employers from terminating an employee who seeks an accommodation for a pregnancy-related reason.

The U.S. Equal Employment Opportunity Commission (“EEOC”) will enforce the PWFA and has two years to issue guidance and examples of applicable reasonable accommodations.  Currently, many of the PWFA’s operative provisions and terms lack specific definitions. For example, “pregnancy-related medical condition” is not defined.  Accordingly, until the EEOC issues its guidance, questions will likely arise as to what constitutes a  pregnancy “related medical condition” for the purposes of the PWFA.

Providing Urgent Maternal Protections for Nursing Mothers Act

For most employers, the PUMP Act was effective December 29, 2022. The PUMP Act amends the Fair Labor Standards Act (“FLSA”) to require employers with 50 or more employees to provide reasonable break time for all employees, including salaried employees, to express breast milk as needed. Under the FLSA, employers were already required to provide a private location for nursing employees to express breast milk.  Under the PUMP Act, an employer must now also afford the employee a reasonable break period for the expression of breast milk for one year following the birth of an employee’s nursing child.

Pursuant to the PUMP Act, most employees will need to be paid for time spent expressing breast milk.  However, while exempt employees must be paid their salary regardless of if they use a break period to express breast milk, the PUMP Act further clarifies that such breaks need not be paid, unless the employee is still on the clock or “not completely relieved from duty” during those breaks – unless it is required under some other municipal ordinance or state or federal law. Employers must also provide a clean and private space for nursing parents to express milk separate and apart from restrooms.

For an employer with less than 50 employees, an exemption may apply if the employer can demonstrate that adherence to the law would inflict undue hardship on the employer’s business operations due to the expense and difficulty in relation to the resources or nature of the business. Additionally, the act exempts certain large employers in the transportation industry from providing these protections.

Key Takeaways

In light of the enactment of the PWFA and the PUMP Act, employers should review and update their policies to comply with these new laws. Most immediately, employers with 50 or more employees should review their policies and practices regarding break time and space for breastfeeding employees to express milk to comply with the PUMP Act. Further, to prepare for the PWFA’s June 2023 effective date, employers with 15 or more employees should establish policies for pregnant workers and applicants to request pregnancy-related reasonable accommodations, and develop a procedure for reviewing and, if required, granting such accommodations.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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