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Pregnant and Nursing Employees Receive New Protections From Congress

    Client Alerts
  • January 06, 2023

Deep within the omnibus spending bill passed in the waning days of 2022 were two new laws providing important new rights to employees who are pregnant or nursing.

First, the Pregnant Workers Fairness Act (PWFA) requires employers with more than 15 employees to make reasonable accommodations for workers or applicants due to limitations caused by pregnancy, childbirth, or related medical conditions unless doing so would impose an undue hardship. Essentially, the PWFA extends the familiar accommodation requirements of the Americans with Disability Act (ADA) to pregnancy and childbirth. Employers should therefore consider revising their accommodation policies and procedures to specifically include pregnancy and related conditions.

The PWFA also prohibits employers from (a) denying opportunities to women based on their need for reasonable accommodations, (b) forcing qualified employees to accept an accommodation other than a reasonable accommodation arrived at through an interactive process, and (c) requiring an employee to take leave (unpaid or paid) if another reasonable accommodation can be provided.

Second, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires employers to allow reasonable break time to all employees needing to express breast milk for up to one year after childbirth. While employers have been required to provide non-exempt employees with such breaks since 2010, the requirement now includes exempt employees. The PUMP Act includes an exception for employers with fewer than 50 employees if compliance would impose an undue hardship causing the employer significant difficulty or expense considering the size, financial resources, nature, or structure of the business.

For non-exempt employees, lactation breaks can typically be unpaid unless the employee chooses to use existing paid break time or is not fully relieved of their duties, in which case they must be paid. Employers should not reduce the pay of exempt employees to account for such breaks.

Employers must provide lactating employees with a private location (other than a bathroom) to express breast milk. Before an employee can bring a lawsuit for failure to provide such a private location, they must provide notice of the non-compliance and wait 10 days for the employer to remedy the situation.