Last year, the federal government passed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers) and the Pregnant Workers Fairness Act (PWFA) to strengthen the protections for employees who are pregnant, nursing, or otherwise caring for newborns.
The enforcement provisions of PUMP for Nursing Mothers will go into effect on April 28, 2023. The PWFA will go into effect on June 27, 2023.
PUMP for Nursing Mothers
Prior to Pump for Nursing Mothers, the Fair Labor Standards Act (“FLSA”) required employers to provide non-exempt employees with a reasonable amount of break time and a private place to express milk for one year following the birth of a child. PUMP for Nursing Mothers expanded the right to receive break time and a private place to express milk for a period of one year after the birth of a child to exempt employees.
The break time does not have to be paid, unless required by state or federal law. However, if employees are provided compensated breaks, an employee who expresses milk during a break must be compensated in the same way that other employees are compensated for break time. Also, if an employee is interrupted during a break to express milk, the break must be compensated.
PUMP for Nursing Mothers provides for a private right of action for an employer’s failure to comply with the Act. The remedies available to employees under the FLSA, including recovery for unpaid wages, liquidated damages, and attorneys’ fees, are available for violations of the Act.
Employers with 50 employees or fewer are exempt from PUMP for Nursing Mothers if compliance would result in an undue hardship.
PWFA
Pregnant employees who have protection from discrimination under the Pregnancy Discrimination Act and the Americans with Disabilities Act (“ADA”), now have further protections under the PWFA.
Under the PWFA, employers with 15 or more employees must provide reasonable accommodations to qualified employees concerning conditions related to pregnancy, childbirth, or related medical conditions, if doing so does not impose an undue hardship upon the employer. In addition, employers cannot: require a qualified employee to accept an accommodation other than one arrived at through the interactive process; deny employment opportunities to a qualified employee based on the need to make reasonable accommodations; require a qualified employee to take leave, whether paid or unpaid, if an alternative reasonable accommodation can be provided; or take an adverse action against a qualified employee on account of the employee requesting or using a reasonable accommodation. The meanings of “reasonable accommodation” and “undue hardship” mirror those in the ADA and employers should use the ADA’s interactive process to determine whether a reasonable accommodation is available.
The House Committee’s Education and Labor Report on the PWFA has identified reasonable accommodations to include flexible hours, providing appropriately sized uniforms, additional break time for the employee to rest or eat, and exemption from activities that would put stress or strain on the employee’s body.
The Equal Employment Opportunity Commission (EEOC) will begin accepting complaints applicable specifically to the PWFA by June 27, 2023; after this date, the EEOC will analyze complaints under the PWFA as it applies.
In light of these new laws, employers should update their policies and procedures and provide appropriate training to managers and supervisors. Please contact a member of the Metz Lewis employment law group or your Metz Lewis contact to learn more.
This post was written by Rachel Felton and Neva Stotler
