Expanded Federal Protections for Pregnant and Nursing Employees

Congress passed a pair of pregnant and nursing worker protections in the Consolidated Appropriations Act, 2023 that are now taking effect.

The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. Employers with fifteen or more employees must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions.

Similar to the Americans with Disabilities Act (ADA), employers must engage in the interactive process with eligible employees or applicants to determine a reasonable accommodation. Employers cannot require an eligible employee to take paid or unpaid leave if another reasonable accommodation is available. Like the ADA, employers do not have to provide accommodation if it causes undue hardship.

Employees whose rights are violated or are retaliated against under the PWFA have the right to reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. Visit the Equal Employment Opportunity Commission’s (EEOC) website for additional guidance and monitor the website for further regulatory updates.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect on December 29, 2022, with additional remedies taking effect on April 28, 2023. It amended the Fair Labor Standards Act (FLSA) to expand existing requirements to provide employees with reasonable break times and a private location to express breast milk for one year after a child’s birth.

The PUMP Act applies to all employers but, employers with fewer than 50 employees can request an exemption if compliance would cause undue hardship. Crewmembers of air carriers, train crews, and motorcoach services operators are also exempt.

The PUMP Act expands employer obligations to provide time and space to express breastmilk. All employees, whether exempt or non-exempt, must be given time to express breastmilk and a private place to do so that is not a bathroom.

The Wage and Hour Division of the Department of Labor recently released enforcement guidance for the PUMP Act. Although the guidance is for field staff enforcing the PUMP Act, it provides helpful information for employers and includes examples of the most important requirements.

1. Break Time

The frequency, duration, and timing of breaks will vary based on the requirements of the nursing employee and child. An employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Any agreed-upon schedule between the employer and employee may need to change based on the employee’s needs. Remote employees are to be treated as if they were working on-site.

2. Compensation

Pump breaks are unpaid unless otherwise required by federal, state, or local law. If an employee is not completely relieved from duty for the entirety of the break, then they must be compensated since the break will be considered hours worked. FLSA salaried exempt employees also may not have their salaries reduced to reflect pump breaks.

3. Lactation Space Requirements

Spaces to pump breast milk at work must be:

• shielded from view;
• free from intrusion from coworkers and the public;
• available each time it is needed by the employee; and
• not a bathroom.

Ensuring privacy can be accomplished by displaying a sign or providing a lock for the door when the space is in use. Remote employees must be free from observation by computer cameras or web conferencing platforms.

The space must contain a place for the nursing employee to sit, a flat surface other than the floor to place a breast pump, an insulated food container, personal cooler, or refrigerator to store milk safely, and have access to electricity and a sink to ensure a sterile environment. To accomplish these requirements, employers can utilize vacant offices, storage rooms, partitions, or privacy screens so long as all the other conditions are met.

4. Retaliation Prohibited

Employees cannot be discharged or in any other manner discriminated against for filing a complaint regarding the pump at work protections. Violations can result in reinstatement, promotion, payment of wages lost, and an equal amount as liquidated damages, compensatory damages, make-whole relief, and punitive damages.

5. Poster

The WHD has published an updated poster with the current pump at work requirements. It must be posted in a conspicuous location in every establishment where employees are employed. Electronic posting is sufficient if all of the employer’s employees exclusively work remotely, all employees customarily receive information from the employer by electronic means, and all employees have readily available access to electronic postings at all times.

Both the PWFA and PUMP Act expand upon existing rights under the ADA, Pregnancy Discrimination Act, and the FLSA. Employers will need to look at their existing policies regarding pregnant and nursing employees and make changes as necessary. Any changes that need to be made for compliant lactation rooms should also be considered.

For additional compliance news, check out our monthly compliance roundup here: What We’re Watching: Employer Compliance Across Benefits, HR, and Retirement.