Brief Guide to the Latest U.S. Federal Protections for Pregnant and Nursing Employees

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On December 22, 2022, Congress passed two measures that expand the rights and protections for pregnant and breastfeeding employees across the country, both of which were subsequently signed into law by President Biden. Please refer to the key takeaways for both Acts below, to ensure that your company’s policies and procedures comply.

Pregnant Workers Fairness Act (PWFA)

Effective June 27, 2023

  • Employers with 15 or more employees are required to provide reasonable accommodations for “the known limitations related to pregnancy, childbirth and related medical conditions of a qualified employee.”

    • The PWFA doesn’t apply to pregnancy itself but to the “known limitations related to pregnancy, childbirth, or related medical conditions.” It’s not clear what exactly qualifies as “known limitations,” other than it must be a “physical or mental condition” related to “pregnancy, childbirth, or related conditions” that the employee “has communicated to the employer.” Notably, moreover, the PWFA doesn’t link “known limitations” to the definition of a “disability” under the Americans with Disabilities Act (the “ADA”), which means the term applies to a broader range of conditions than those covered under the ADA.
    • Speaking of the ADA, the PWFA’s definition of reasonable accommodation is the same as the ADA’s definition, which defines it as a modification or adjustment to a job or the work environment that enables a disabled employee to have an equal opportunity to successfully perform a job. Keep in mind that a leave of absence can be a form of reasonable accommodation under both laws.
    • Also similar to the ADA, employers are required under the PWFA to implement an interactive process to determine reasonable accommodations for pregnant employees, provided that such accommodations do not pose an undue hardship to the employer. The interactive process must include good-faith collaborations with a pregnant employee to identify what reasonable accommodations could be appropriate.
    • The Equal Employment Opportunity Commission (“EEOC”) is expected to issue regulations relating to the PWFA within one year of the law’s enactment. Meanwhile, the EEOC has issued FAQs about the PWFA.
  • Please note that PWFA doesn’t replace preceding federal, state and/or local laws that are more protective of workers impacted by pregnancy, childbirth and related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Effective December 29, 2022 (enforcement mechanisms effective April 28, 2023)

  • The PUMP Act expands on a preceding 2010 Fair Labor Standards Act (“FLSA”) amendment that applies only to non-exempt employees, and provides workplace protections to all employees covered by the FLSA, both exempt and non-exempt.

  • Employers of all sizes generally are required to provide reasonable break time and a clean, private space for lactating workers to express milk, for up to one year after childbirth. The pumping space cannot be a bathroom.

    • Employers that have fewer than 50 employees may be exempt from providing break time and space if either would pose an undue hardship on the business.
    • There also are specific exemptions for crewmembers of air carriers, train crews of rail carriers and motorcoach services operators who are involved in the movement of a motorcoach.
  • If an employer has not provided an adequate space to pump, employees must notify their employer immediately. The employer then has 10 days to comply. This legislation became immediately effective on December 29, 2022. However, there was a 120-day delay included as an enforcement provision, which makes enforcement mechanisms effective on April 28, 2023.

  • Accordingly, beginning April 28, 2023, an employer who violates an employee’s right to reasonable break time and space to pump breast milk can be found liable for legal or equitable remedies under the FLSA. Remedies may include a reinstatement, lost wages, and liquidated damages.

  • Please be reminded that pre-existing state and local laws that provide additional protections remain unaffected by the PUMP Act.

This is an active time for leave-related legislation. Each year, states nationwide review and revise their legislation to make it more accessible. If your team is managing leave in multiple states, staying abreast of these frequent changes can be a struggle. Outsourcing employee leave to Sparrow, the first true end-to-end leave management provider for modern employers, can provide you with confidence in your leave compliance.