President Biden recently signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). Both laws significantly expand federal protections for pregnant and nursing workers. The PWFA will go into effect on June 27, 2023. The PUMP Act took effect on December 29, 2022, but expanded coverage and enforcement mechanisms went into effect only on April 28, 2023. Human resource professionals take note.

Long gone are the days when expectant mothers vanished from their jobs when they started to show. Today, women make up about half of the workforce. More are continuing to work while they are pregnant, and the great majority return to work after pregnancy. Women’s talents can be vital to the success of a company, and their financial contributions are important to their family’s economic security. Human resource professionals should ensure that women’s skills and experience are not lost by their companies through old policies that ignore current laws, attitudes, and the significant contributions women make to the businesses who employ them.

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These New Laws Protect Mothers in the Workplace

Both the PWFA and the PUMP Act are built on an existing legal framework of employment protections. The PWFA is modeled after the Americans with Disabilities Act (ADA), but it expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable, temporary accommodations for medical conditions related to pregnancy and childbirth. Additional covered situations might include conditions like pre-eclampsia, severe dehydration, or gestational diabetes.

Employment Law – Reasonable Accommodation Under the PWFA

The process of obtaining a reasonable accommodation begins with a worker’s or applicant’s request for assistance. As with the ADA, the PWFA requires the employer to engage in an interactive process with the employee to find a reasonable accommodation that does not impose an undue hardship on the employer. Reasonable accommodations might include work that does not involve heavy lifting, allowing more frequent bathroom breaks, parking spots that are close to an entrance, and permitting a worker whose job involves standing to sit.

To pursue a claim of violation of the PWFA, an employee must file a charge with the Equal Employment Opportunity Commission (EEOC), which has also been charged with developing further guidance. An employer may not require an employee covered by the PWFA to take paid or unpaid leave if a reasonable accommodation is available. The law also protects covered employees from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.

Charges may be filed with the EEOC on or after June 27, 2023, about incidents that occur on or after that date, relief is prospective only. After then, relief for private-sector employees may include reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorney fees and costs.

Until then, it is important to realize that pregnant workers can fall between the legal cracks. The ADA does not recognize pregnancy as a disability, although some pregnant workers may have conditions that can prompt negotiations about reasonable accommodations.

The existing federal Pregnancy Discrimination Act protects workers only from adverse employment decisions because of pregnancy. It does not reach the issue of accommodation. Provisions of the Texas Labor Code similarly protect pregnant workers from bias but do not require reasonable accommodations for pregnancy-related medical conditions.

The PUMP Act – Breast Milk for Baby

Baby has now arrived, and mama is back at work juggling conflicting demands. The work that parents do clearly brings benefits to their communities, employers, and families. But not all benefits can be immediately measured in dollars. Some of it is measured in health, even long-term health. According to the Centers for Disease Control:

• Breast milk is the best source of nutrition for most babies.
• Breast milk shares antibodies from the mother with her baby.
• Breastfeeding can reduce the mother’s risk of breast and ovarian cancer,
  type 2 diabetes, and high blood pressure.
• Breastfeeding can help protect babies against some short- and long-term illnesses
  and diseases including asthma, obesity, type one diabetes, and sudden infant death
  syndrome (SIDS).

The PUMP Act amends the Fair Labor Standards Act (FLSA) to require that employers provide reasonable break times for workers to express breast milk for a full year after the child’s birth. The PUMP Act does not apply to employers with fewer than 50 employees if certain requirements under the law would cause an undue hardship to the employer. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion where a working mother can pump. The pumping time is considered hours worked if the worker is not completely relieved of duty during the entire break. The law extends these protections regardless of whether the worker is exempt from the wage and hour provisions of the FLSA.

Workers may file complaints of violation with the PUMP Act with the U.S. Dept of Labor’s Wage and Hour Division. It is illegal to fire or discriminate against a worker for filing such a complaint. An example of illegal retaliation might include transfer to a lower-paying job because a supervisor complains that the employee’s breast milk pump sessions interfere with a work schedule. A worker may also file a private lawsuit. Remedies may include re-employment, reinstatement, promotion, payment of wages lost, as well as liquidated, compensatory, consequential, and punitive damages.

Check Your Company Policies to Ensure They Conform to the New Laws

Human resource professionals and company managers should review their policies and procedures to ensure they are updated with these new federal laws and make any necessary changes. Managers and supervisors should be informed and trained on how to handle pregnancy accommodation requests and requests to express breast milk in the workplace. This is even more important now that expanded coverage and remedies are in effect.

Our Employment Law Attorneys Have Answers to Your Questions About Protections for Pregnant and Nursing Workers

We understand how difficult it can be to deal with a workplace culture that is slow to adapt to the economic realities of changing employment laws. Both workers and employers have a vested interest in making their relationships work for the success of the organization. To quote the late Paul Wellstone, “We all do better when we all do better.” Reach out to us about new laws that affect the workplace. We know how to take a worker’s legal rights to an employer and settle disputes that arise. Click here to get the conversation started contact Kilgore & Kilgore.