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Pregnant Workers Must Now Be Accommodated, and Another New Law Extends Rules regarding Expressing Milk

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A couple of new laws were passed by Congress at the end of the year that have not been widely publicized.  The Pregnant Workers Fairness Act (PWFA) was passed as an amendment to the $1.7 trillion government funding bill.  This law takes effect on June 27, 2023. Specifically, the PWFA would require employers with 15 or more workers to grant temporary and reasonable accommodations for pregnant workers, including job applicants and employees with conditions related to pregnancy or childbirth.  The distinction from the existing Pregnancy Discrimination Act is that the PWFA requires employers to provide reasonable accommodations.  As pregnancy had not been considered a per se disability, neither the existing pregnancy nor disability laws required such accommodations for pregnancy.  The new law adopts the same definition of a "reasonable accommodation" as does the Americans with Disabilities Act (ADA), as an arrangement that does not impact essential functions of the job.  The PWFA explicitly provides that if an individual is temporarily unable to perform an essential function, the person is still "qualified" if they would be able to perform the function again in the near future and a reasonable accommodation is otherwise available.

Reasonable accommodations might include, for example, an extra bathroom break, a stool to sit on, limiting contact with certain chemicals, and a reduction in lifting requirements.  Of particular interest to employers may be the new law's effect on light duty programs, often limited to workers' compensation claimants.  While many courts have held that employers may restrict light duty work only to workers injured on the job and covered by workers’ compensation programs, this limitation may no longer apply to pregnant workers who are entitled to light duty, in addition to transfers, breaks, preferential scheduling, and other accommodations under the PWFA.  As with the ADA, the duty to accommodate is subject to limitation in case of extreme hardship.

A second law was also passed as part of the Appropriations Act just before the end of the year, the Providing Urgent Maternal Protections (PUMP) Act.  Under existing law, in the Fair Labor Standards Act, employers were required to provide eligible employees with reasonable break time to pump breast milk for a nursing child for one year after birth.  Among other changes, the PUMP Act extends to all employees the same lactation break rights the earlier law provided to non-exempt employees.  It also requires employers to designate time and space for nursing employees to pump during the day, and the time spent pumping counts as hours worked if the employees are doing their jobs at the same time.  The break time to express breast milk may be unpaid provided that the employee is completely relieved from their duties during such time and other laws do not otherwise require compensation.   It requires employers to provide somewhere private for a nursing employee to pump, and the PUMP Act clarifies that "somewhere" cannot be a bathroom.  Before an employee may pursue a claim for failure to provide the appropriate lactation accommodation space, the employee must notify the employer of the violation and provide the employer with 10 days to cure.   There is a very limited exception for employers with less than 50 employees if compliance would cause the organization undue hardship.  

The PUMP Act's obligation for private employers to provide a lactation space and break times to all employees (including exempt employees) went into effect immediately upon President Biden's signing of the law on December 29, 2022. 

This article is part of our February 2023 Newsletter.

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