05 January 2023

Congress Passes New Protections for Pregnant and Nursing Workers

Last week President Biden signed into law an omnibus spending bill that guarantees pregnant workers nationwide the right to reasonable accommodations in the workplace, and nursing workers the right to a private space and break times to express breast milk.

The new protections are the result of the spending bill’s inclusion of two pieces of legislation—the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The PWFA, which will take effect June 27, 2023, requires employers with 15 or more workers to grant reasonable accommodations for pregnant workers and applicants, and prohibits employers from discriminating against employees or job candidates because of their need for a pregnancy-related accommodation. Depending on the circumstances, reasonable accommodations might include, for example, assigning a pregnant employee to an available position that doesn’t involve heavy lifting or allowing more frequent bathroom breaks.

Employers are already prohibited under federal law from discriminating against employees who are pregnant, but federal law does not require employers to affirmatively accommodate them. Courts have ruled that failing to accommodate pregnant workers is discriminatory only if the employer had similarly accommodated non-pregnant workers. Until passage of the PWFA, the right to a reasonable accommodation under federal law was only guaranteed to employees on account of disabilities and sincerely-held religious beliefs.

The PWFA adopts the same definitions of a “reasonable accommodation” and “undue hardship” as the Americans with Disabilities Act (ADA), and requires employers to follow the same interactive process. However, employers are not required to grant reasonable accommodations that would impact the essential functions of a job. The law gives the Equal Employment Opportunity Commission the same authority to enforce pregnancy accommodation claims that the agency currently has for enforcement of the ADA and Title VII of the Civil Rights Act.

The PUMP Act, which took effect immediately, mandates that companies with more than 50 employees provide a private space and certain break times for all nursing mothers to express breast milk. Federal law had previously only protected nursing mothers who were covered by the overtime provisions of the Fair Labor Standards Act (FLSA), but the PUMP Act now makes sure that workers exempt from the FLSA, such as salaried employees, are protected as well.

We recommend that employers revise their existing reasonable accommodation policies to include pregnancy, and their lactation policies to comply with the PUMP Act. In addition, employers should apply their existing reasonable accommodation processes to requests on the basis of pregnancy.

If you have any questions about compliance with these new laws, please contact one of the authors or another employment attorney at Miller Johnson.