Written by Christie Del Rey-Cone and Thea Rogers
It may surprise California-centric employers to learn that up until the final days of 2022, Federal law seldom required employers to provide reasonable accommodations to individuals with known pregnancy-related limitations, and millions of nursing mothers had no guaranteed right to lactation breaks during working hours. On December 29, 2022, President Biden signed two laws that finally changed this – the Pregnant Workers Fairness Act (the “Act” or “PWFA”), which provides additional protections for pregnancy, childbirth and related conditions, and the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”), which codifies a nursing mother’s right to lactation breaks.
The newly-enacted PWFA does not take effect until June 27, 2023, but once it does, the Act will require all employers with fifteen or more employees to provide reasonable accommodations to qualified employees temporarily experiencing known limitations due to pregnancy, childbirth, or related medical conditions. Between now and the Act’s effective date, a pregnant worker may have the right to receive an accommodation to their working conditions and/or work environment under another Federal law (e.g., the Americans with Disabilities Act, the “ADA” or the Pregnancy Discrimination Act (“PDA”)) or state law (e.g., California’s Fair Employment and Housing Act (“FEHA”)).
For purposes of the PWFA, a “qualified employee” is any employee or applicant who can perform the essential functions of the employment position with or without reasonable accommodation; importantly, however, an employee or applicant is still considered “qualified” if their inability to perform an essential function of the employment position is only temporary, can be reasonably accommodated by the covered employer, and in the near future the individual will be capable of performing that essential function. A covered employer is only permitted to deny a qualified employee’s accommodation request if providing an accommodation would result in “undue hardship” on the employer’s operations. In no event may a qualified employee be discriminated against, threatened, coerced or retaliated against for requesting a covered employer to accommodate their known pregnancy or pregnancy-related limitations.
This Act is in many ways similar to the ADA and the PDA, which prohibit covered employers from firing or otherwise discriminating against qualified employees on the basis of a known disability or pregnancy/childbirth/related medical conditions, respectively. Consequently, the PWFA requires covered employers to engage in the interactive process once they receive an accommodation request from a qualified employee with known pregnancy or pregnancy-related limitations, and must make a good faith effort to accommodate the employee’s temporary condition and limitations. Pursuant to the House Committee on Education and Labor Report on the PWFA, possible temporary accommodations may include providing a qualified employee with flexible hours, an appropriately sized uniform, closer parking, additional break time to use the bathroom, eat, and rest take leave or a break from strenuous activities and/or activities that involve exposure to chemicals unsafe for pregnancy. The PWFA forbids covered employers from requiring a qualified employee to accept an accommodation that was not arrived at through the interactive process and, unlike the ADA, the Act also prohibits covered employers from requiring the employee to take a leave of absence (including a paid leave of absence) if another reasonable accommodation can be provided given the employee’s known limitations.
The Equal Employment Opportunity Commission (the “EEOC”) will be responsible for enforcing the PWFA and will begin accepting Charges on the Act’s effective date. For the PWFA to apply, the alleged PWFA violation must have occurred on June 27, 2023, or later.
The PUMP Act
The PUMP Act, which takes effect on April 28, 2023, expands on existing lactation accommodations provided to nursing mothers under the 2010 Break Time for Nursing Mothers Act, which amended section 7 of the Fair Labor Standards Act (the “FLSA”). Although the FLSA already required covered employers to provide lactation accommodations during working hours to some nursing employees, nearly one in four similarly-situated employees were deprived of these accommodations. The PUMP Act aims to remedy this.
First and foremost, the PUMP Act significantly expands reasonable break time and private location lactation accommodations to nursing mothers who are classified by their covered employers as exempt employees not subject to minimum wage and overtime protections. Previously, the FLSA’s workplace lactation accommodations only applied to covered employers’ non-exempt employees. For purposes of the PUMP Act, a covered employer is any employer covered by the FLSA, regardless of the size of the employer’s business. However, if an employer has fewer than 50 employees and can demonstrate that PUMP Act compliance would impose an undue hardship given the employer’s size, financial resources, nature, or business structure, it may be exempt from the PUMP Act’s break time requirement.
Under the PUMP Act, most nursing employees will now have a federal right to reasonable break time each time they need to express breast milk, and will be provided with a private, intrusion-free and sanitary place other than a bathroom to take these breaks. This right is available for up to one year following the child’s birth. The PUMP Act does not require that the lactation breaks be paid unless a nursing employee is not completely relieved of all work duties. If a nursing employee must work during their break, then the break time is compensable. Additionally, if a covered employer has a general policy of providing paid breaks, an employee who uses such break time to express breast milk must be compensated in the same way that other employees are compensated for any other break time.
Alleged PUMP Act violations can be redressed by the U.S. Department of Labor Wage and Hour Division (“WHD”) or in court beginning on the Act’s effective date. It is not necessary for an employee to file a WHD complaint before filing a lawsuit. Furthermore, it is a violation of the FLSA for covered employers to fire or otherwise retaliate against any employee for filing WHD complaints or instituting proceedings under or related to the PUMP Act.
For California Employers
Finally, before California employers jump to the conclusion that the PWFA and PUMP Acts do not impact them, given state-mandated accommodations already provided to pregnant and nursing mothers under the FEHA and California Labor Code sections 1030-1034 (codifying state lactation accommodations), they should first consider whether they have any employees who work remotely, outside of California. Although both Federal laws require minimum employee thresholds for applicability, an employer’s total employee count is determined without consideration of employees’ physical location (unlike, for example, the federal Family Medical Leave Act which maintains a75-mile radius requirement). Thus, even if an employer only has one remote employee working outside of California, but has 100 other employees located in California, its remote worker will be covered by the PWFA and PUMP Acts.