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New federal protections for pregnant and nursing workers

Written by Katarina Niparko, Compliance Counsel

pregnant woman learning about her health

Late in 2022, the 2023 Consolidated Appropriations Act passed, including two particularly notable measures relating to workplace accommodation: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). These Acts expand the rights of pregnant and nursing employees. Here’s a summary of each Act and what it means for employers nationwide. For those who want to read both Acts in their entirety, please find a PDF version here: see pages 1626-31 and 1635-39, respectively.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) provides expanded protections to pregnant employees in the workplace, as well as applicants, in addition to those provided by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). The new Act applies to employers with 15 or more employees and requires those employers to provide eligible employees and applicants with reasonable accommodations to known physical or mental conditions and limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Note, the employee’s or applicant’s condition does not need to meet the same standard as the ADA, providing greater protections under the PWFA. However, similar to the ADA, the employer must engage in the interactive process with the qualified employee or applicant to determine what reasonable accommodations the employee or applicant may need and whether such accommodation would impose an undue hardship on the employer. Also like the ADA, this Act includes anti-discrimination/anti-retaliation provisions, protecting employees and applicants from discrimination, retaliation, coercion, intimidation, threats, or interference with exercising their rights under the PWFA. Furthermore, the Act prohibits employers from requiring a qualified employee to take leave, paid or unpaid, if another reasonable accommodation can be provided.

This act will be enforced by the Equal Employment Opportunity Commission (EEOC), which will be implementing additional regulations within one year of enactment of the Act.

The PWFA will take effect on June 27, 2023 (180 days after enactment).

Providing Urgent Maternal Protections for Nursing Mothers Act

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act) amends the Fair Labor and Standards Act (FLSA) to expand employee access to reasonable break time and space (other than a bathroom) for an employee to express breast milk for the employee’s nursing child for 1 year after the child’s birth. This right applies to both exempt and non-exempt employees. Such time will not need to be compensated unless otherwise required by federal, state, or local law; however, the time will be considered hours worked if the employee is not completely relieved from duty during the entirety of the break. The Act exempts from coverage employers with less than 50 employees, if the small employer can establish that the requirements of the Act would impose an undue hardship on the business. Further exemptions are outlined in the Act for crewmembers of air carriers, train crews of rail carriers, and motorcoach service operators. Employees must notify their employers if they believe the employer is not complying with the new Act and give the employer 10 days from the date of notice to comply before seeking legal action against the employer.

The Department of Labor will be charged with enforcement of the Act.

The PUMP for Nursing Mothers Act took effect immediately upon enactment, when signed by the President on December 29, 2022.

What employers should do about the new pregnancy and nursing laws?

Given these new laws, employers will want to take the time to update their employee handbooks and workplace policies accordingly, to ensure they comply with both laws and do not violate the newly established rights of their employees and/or applicants.

What will Alight do to assist organizations navigating pregnancy and nursing legislation?

We continuously track and analyze current and pending leave and accommodation legislation to determine potential impacts to our customers. We provide the support our clients need to meet the requirements of the new laws.

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