As the employment law updates roll in, here are two you don’t want to miss: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act).
Just days before the new year, President Biden signed both into law as part of the omnibus spending bill. Here’s what you need to know:
1. The PWFA
The PWFA “closes a loophole” in the Pregnancy Discrimination Act (PDA), Sen. Bob Casey said in a recent debate.
What’s different? The PDA prohibits pregnancy-related bias in the workplace – but it does not specifically guarantee pregnant workers the right to accommodations.
The PWFA fills that gap.
Using language found in the Americans with Disabilities Act (ADA), the PWFA requires companies with 15 or more employees to provide “reasonable accommodations” to workers for pregnancy, childbirth or related medical conditions – unless those accommodations would cause an “undue hardship.”
Moreover, the law requires companies to engage in the “interactive process” to work together with employees to determine whether a reasonable accommodation would allow the person to do the job.
Examples of reasonable accommodations might include light duty, flexible scheduling and temporary transfers.
In addition, the PWFA prohibits employers from requiring workers “to take paid or unpaid leave if another reasonable accommodation can be provided.” It also expressly prohibits retaliation based on pregnancy-related accommodations and/or requests.
The legislation takes effect on June 27.
Employment law updates: New regs on the horizon
The EEOC will enforce the new law, and Congress has directed the agency to release compliance regulations within two years.
In the meantime, employers can apply the EEOC’s recent advice (updated in July 2022) on the ADA’s interactive process, which recommends asking the following possible questions:
- How does the disability (here, the pregnancy or related condition) create a limitation?
- How will the requested accommodation address the limitation?
- Would another form of accommodation effectively address the limitation?
- How would the proposed accommodation help the employee do their job?
2. PUMP for Nursing Mothers Act
The PUMP for Nursing Mothers Act expands workplace protections for lactating employees.
Specifically, it amends the Fair Labor Standards Act (FLSA) and a 2010 law – Break Time for Nursing Mothers – that requires employers to provide reasonable breaks and a private place, other than a bathroom, that can be used by nonexempt employees to express breast milk.
The PUMP for Nursing Mothers Act expands those rights to include salaried and exempt workers who are lactating. The law also clarifies that the time spent pumping must be paid if an employee “is not completely relieved from duty during the entirety” of the break.
Companies with fewer than 50 employees can seek an exemption if they can show compliance would result in an undue hardship.
The law provides certain exemptions to the airline industry. (See Section 18D (g) for details.)
Though the law took effect immediately, the enforcement provision included a 120-day delay, making the effective date for that provision April 28.
Helpful advice until DOL issues new guidance
The DOL, the agency charged with enforcement, has posted an announcement on its website, saying: “More details about the changes in the law are forthcoming.” Congress charged the Secretary of Labor to issue guidance within 60 days.
In the meantime, companies can turn to the U.S. Department of Health and Human Services Office on Women’s Health for advice on how to support lactating employees. The guidance includes helpful strategies on:
- Time accommodations for lactating employees.
- Space accommodations for lactating employees.
- What should be included in a lactation policy.
- What a lactation room should include.
- Where to find more information about laws related to breastfeeding and lactation in the workplace.