The Biden administration has recently signed two new pieces of legislation — the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) — into law. Much like pregnancy brings the joy of childbirth, these new laws bring employers the joy of additional legal compliance.
The Pregnant Workers Fairness Act (PWFA)
The PWFA will go into effect on June 27, 2023, and applies to employers with 15 or more employees. The Act is intended to clarify the Supreme Court’s opinion in Young v. United Parcel Service, Inc., which held that pregnant workers were entitled to accommodations under the Pregnancy Disability Act — but only if the employer provided comparable accommodations to similarly situated workers.
In a rebuke to Young, employers subject to the PWFA will now be required to provide reasonable accommodations to pregnant workers regardless of whether accommodations are provided to similarly situated employees. The definition of “reasonable accommodations” under the PWFA is the same as that under the Americans with Disabilities Act (ADA). Employers must engage in an interactive process with a qualified employee to determine what accommodation is reasonable, provided that the accommodation does not impose an undue hardship on the employer. An employer is prohibited from requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation exists, and qualified employees are protected from retaliation, coercion, intimidation, threats, or interference if they request or receive accommodation.
Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The PUMP Act amends the Fair Labor Standards Act (FLSA) and was signed into law on December 29, 2022. Note, however, that the Act explicitly contains a 120-day delay on enforcement. This means — in essence — that the Act is not effective until April 28, 2023, and employers have a grace period until that date to bring themselves into compliance with the Act’s provisions.
By way of background, employers subject to the FLSA were previously required to provide non-exempt employees with (1) reasonable break time to express their breast milk, and (2) a private place shielded from view and intrusion, which is not a bathroom. The PUMP Act now expands these obligations to all employees — not simply non-exempt ones.
Notably, employers with fewer than 50 employees may be exempt from complying with the Act, provided that the employer can establish that doing so would impose an undue hardship which would cause significant difficulty or expense to the employer.
If you have any questions regarding the new PWFA or the PUMP Act or need assistance updating your policies, the employment law attorneys at WilliamcMcCarthy are happy to assist.