President Biden signed the Consolidated Appropriations Act on December 23, 2022, thereby adopting both the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). Employers should familiarize themselves with the individual requirements of each Act, summarized below, which are either currently in effect or will be in 2023.
Complying with the PWFA
Beginning June 27, 2023, employers with fifteen or more employees will be subject to PWFA, which mirrors the “reasonable accommodation” provision of the American with Disabilities Act (ADA) by requiring accommodation of pregnant employees and applicants unless it would impose undue hardship on the employer. Many jurisdictions do not consider pregnancy as a disability under the ADA, but pregnant workers will now receive similar protection under PWFA’s accommodation requirement.
Eligible employees may seek an accommodation for either a physical or mental condition related to pregnancy, childbirth, or other similar medical conditions. Either the employee or their representative can make the employer aware of the employee’s pregnancy-related limitations. Like the ADA, PWFA also requires the accommodation process be interactive – employers must work with the employee to determine what is most appropriate, but employers will retain a damages defense against potential future liability if they work in good faith to identify accommodations equally as effective as those proposed by the employee/applicant. Employers cannot, however, require an employee to accept an accommodation not arrived at through the interactive process or require the employee to take leave (paid or unpaid) if another reasonable accommodation is possible. The Equal Employment Opportunity Commission must issue regulations under the Act within one year of its promulgation and PWFA directs that example accommodations be included within these regulations.
PWFA prohibits retaliation against employees who file a charge, testify, assist, or participate in any manner in an investigation, proceeding or hearing regarding a PWFA violation. Also expressly prohibited is any interference with an employee exercising their rights under PWFA, as well as coercion, intimidation, or threats towards the employee. Should a violation of the Act occur, private-sector employees will be entitled to remedies such as reinstatement, back pay, front pay, compensatory damages, punitive damages, and recovery of attorneys’ fees and costs.
Employers subject to PWFA should review their policies and procedures and consider the types of accommodations pregnant workers may require. It is important that Human Resources and other related personnel are appropriately trained and prepared for the interactive component of the accommodation process. PWFA also does not prevent state law from providing more generous protections to pregnant workers; employers must stay in tune with their local requirements.
PUMP for Nursing Mothers Act The PUMP Act amends the Fair Labor Standards Act (FLSA) by imposing additional employer obligations for employees who are nursing. While the PUMP Act is effective as of December 29, 2022, the amended remedies available to employees under the Act will not take effect until April 28, 2023. Importantly, employer obligations imposed by the PUMP Act will be available to all employees and do not depend on non-exempt employee status under the FLSA. For one year following the birth of an employee’s child, the PUMP Act requires employers to provide the employee with reasonable break time to express breast milk. Employers can satisfy their obligations even if the break provided is unpaid, but employees who express breast milk during an otherwise paid break must still receive the same pay. Nursing employees will also be entitled to their regular pay if not completely relieved of duty for the entirety of the break. The Act does not alter the existing employer obligation to provide employees a place to express milk in private, other than a bathroom. In 2010, the FLSA was amended to provide employers with fewer than 50 employees an exemption from compliance with the law if it would cause the employer undue hardship (i.e., significant difficulty or expense). This “small business” exception remains available under the PUMP Act, along with an exemption for air carrier crew members and certain exceptions for rail carrier and motorcoach service operators. Employees who wish to report a violation under the PUMP Act will be required to first provide notice of the alleged violation to the employer and then give a 10-day cure period before the employee will be eligible to file suit. This notice period, however, can be waived through retaliation – employers that terminate reporting employees in retaliation for either requesting a space to nurse or for opposing the employer’s refusal to provide one will not have the chance to cure the alleged violation. Although not effective until April 2023, the PUMP Act provides employees with the same remedies available under the FLSA, such as unpaid wages, reinstatement, back pay, front pay and liquidated damages. All employers should currently allow nursing employees with reasonable break time and also be prepared to make appropriate accommodations for pregnant workers. Contact your Kunzler Bean & Adamson attorneys for any questions regarding these additional federal protections, or for a privileged review of your company’s policies and procedures.
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