Written by S. Whitney Rahman

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), mandating that most employers provide certain workplace accommodations for pregnant and nursing employees. The PUMP Act went into effect immediately. The PWFA goes into effect on June 27, 2023.

Coverage

The PWFA applies to private employers with 15 or more employees as well as public employers, and extends to all qualified employees with known limitations due to pregnancy, childbirth, or related medical conditions. An employee is a “qualified employee” if they are able to perform the essential functions of the job with or without accommodation.

The PUMP Act applies to public and private employers, and extends current nursing accommodations to overtime-exempt employees and others, such as teachers, some nurses, and certain agricultural workers previously not afforded protection. The PUMP Act applies for one year after the child’s birth.

Prohibited Conduct

Under the PWFA, an employer may not:

• Deny reasonable accommodations to the known limitations of a qualified employee due to pregnancy, childbirth, or related medical conditions.
• Require qualified employees to accept an accommodation other than a reasonable accommodation arrived at through an interactive process between the employer and the employee.
• Deny employment opportunities to a qualified employee based on the need to make these reasonable accommodations.
• Require a qualified employee to take leave, paid or unpaid, if another reasonable accommodation can be provided.
• Take adverse action against a qualified employee because the employee requested or used reasonable accommodations.
• Retaliate against an employee for opposing an employer’s unlawful behavior under the PWFA or for involvement in proceedings to enforce the PWFA.
• Coerce or intimidate an employee in the exercise of their rights under the PWFA.

Under the PUMP Act, an employer may not:

• Refuse to comply with the break and space standards of the PUMP Act (discussed below).
• Retaliate against an employee for opposing an employer’s unlawful behavior under the PUMP Act or for involvement in proceedings to enforce the PUMP Act.

Reasonable Accommodations Under the PWFA

The PWFA affords qualified employees reasonable accommodations for known limitations due to pregnancy, childbirth, or related medical conditions. A “known limitation” is broader than a “disability” under the Americans with Disabilities Act (ADA), and encompasses lifting, sitting, standing, or strenuous activity limitations, increased need for bathroom breaks, access to water, or other limitations that could affect the health of the employee and their pregnancy.

Reasonable accommodations to these known limitations may include, but are not limited to, accommodating sitting or standing limitations, providing access to water, closer parking, flexible hours, a modified work schedule, appropriately sized uniforms and safety apparel, additional break time to use the bathroom or to rest, and excusing the employee from strenuous activities or exposure to dangerous compounds. A reasonable accommodation may also include taking leave, but employers cannot require an employee to take leave if another reasonable accommodation can be provided. The Equal Employment Opportunity Commission (EEOC) will issue further guidance and suggestions for reasonable accommodations later this year.

An employer may defend against a claim for failure to accommodate by demonstrating that the accommodation would impose an undue hardship on the employer’s business, meaning it would impose a significant cost on the employer.

Reasonable Accommodations Under the PUMP Act

The PUMP Act requires employers to provide nursing employees with needed break time to express breast milk and a private space, other than a bathroom, for that purpose. The frequency and length of break time will vary by employee and may change over time. Employers will not be required to compensate employees for these breaks unless the employee is not completely relieved from duty for at least 30 minutes, or would otherwise be compensated for this time.

The PUMP Act requires that the space provided to employees be private, shielded from view and free from intrusion from coworkers and the public. However, the space need not have four walls or be a permanent structure. The Office of Women’s Health suggests that portable popup tents, curtains, or privacy shields may be appropriate. The space must be available to the employee when needed, and must be free from intrusion, which the employer may secure by utilizing an “occupied” when in use sign or by installing a lock. The space also must have a chair or some place for the employee to sit, and a flat surface (other than a floor) for a breast pump.

Only employers with fewer than 50 employees may have a defense to a failure to accommodate under the PUMP Act if they can show that the accommodation would impose an undue hardship in the form of a significant cost on the employer’s business.

Employer Liability

Under the PWFA and the PUMP Act, successful claimants may obtain both compensatory damages and punitive damages, as well as back pay, and their attorney’s fees. Additionally, the court may order reinstatement or other injunctive relief. Employers under the PWFA can avoid liability for compensatory and punitive damages if they make a good faith effort to provide reasonable accommodations to their pregnant employees.

Under the PUMP Act, the employee first must notify the employer that it is not complying with the space requirements of the PUMP Act ten days before filing an action. These ten days give the employer time to remedy their violation of the PUMP Act to limit their liability.

What This Means For You

To comply with the PWFA, employers must work with pregnant employees to find suitable accommodations that will allow the employee to continue to work and maintain a healthy pregnancy. This collaborative process is similar to the interactive process used for requested accommodations under the ADA. Employers who make a good faith effort to provide reasonable accommodations to their employees’ known limitations under the PWFA may avoid liability for punitive and compensatory damages, and an employer also can avoid damages by proving undue hardship.

Employers should plan on where and how to provide their employees with a space suitable for expressing breast milk in compliance with the PUMP Act, and work with employees in need of accommodation under the PUMP Act to provide them with the breaks they need. Employers with less than 50 employees may raise undue hardship as a defense if the accommodation would cost the employer significant expense.

Employers should update their employee handbooks by making sure pregnancy is a covered status in any equal employment opportunity policy, and by updating reasonable accommodation policies to make sure they cover reasonable accommodations to known limitations of pregnant employees.

If you have any questions about this or any other employment law issue, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237, Grace C. Nguyen Bond at gcnb@blakingerthomas.com or (717) 509-7226, or Beth Ann Ebersole at bae@blakingerthomas.com or (717) 509-7219.

**This update is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist.**