According to the United States Department of Labor, women make up nearly 50% of our workforce, and 85% of working women will become mothers during their careers. In a country without paid maternity leave, the economic importance of continuing to work during pregnancy is critical for many women. To promote this objective, the Pregnant Workers Fairness Act (PWFA) was passed at the end of last year and takes effect on June 27, 2023. And to facilitate greater protections for working mothers, the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act was signed into law on December 29, 2022, and took effect immediately.
Pregnant Workers Fairness Act (PWFA)
The PWFA applies to employers with at least fifteen (15) employees and will address the gap in the current workplace and allow pregnant employees to continue working with reasonable accommodations.
The PWFA’s protections mirror the requirements of the ADA, applying the concepts of “reasonable accommodation” and “undue hardship,” and requiring an interactive discussion. Like the ADA, pregnant employees are not entitled to the accommodation of their choice, but an employer cannot require an employee to take a leave of absence (paid or unpaid) if another reasonable accommodation exists that would not create undue hardship to the employer. Examples of accommodations may include remote work options, more frequent work breaks, a chair, or limits on physical activity.
Just like the ADA, employers will individually consider each accommodation request based on the circumstances, including the type of work, organizational needs, and available resources. The key is having the interactive discussion to find options that are not an undue hardship for the employer and allow the pregnant worker to perform the essential functions of their job with satisfactory performance.
PUMP for Nursing Mothers Act
PUMP applies to any employer who is required to comply with the Fair Labor Standards Act (FLSA) and expands employer obligations to include reasonable break times for both exempt and nonexempt employees to express breast milk for their nursing child for one year after the child’s birth. Previously, this section of the law only applied to nonexempt (hourly) workers.
Employers should ensure that nonexempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk.
Employers are also required to continue to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public that may be used by an employee to express breast milk.
However, employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense.
Employers should update their policies and provide supervisor training to ensure compliance with these new laws along with continued compliance with the federal Pregnancy Discrimination Act of 1978 (PDA) and state discrimination laws that remain in effect. Please contact one of our McLane Middleton locations if you have any questions related to this article, or any other employment matter.