Every employer with 15 or more names on the payroll needs to understand its obligations under two new federal laws relating to pregnant and nursing employees. With bipartisan support in Congress, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) were passed last month and take effect almost immediately.
Nursing mothers received some protections under the Affordable Care Act in 2010 to take breaks at work to nurse their infants or to express milk to be refrigerated and saved for later. Those protections have been expanded and recodified with this new law.
What’s new under the PUMP Act?
- Employees who are breastfeeding an infant can take advantage of the nursing protections at work for 2 years instead of 1 year allowed under the ACA. The wording in the PUMP Act is ambiguous as to when that two-year protection starts. It says, “for the 2-year period beginning on the date on which the circumstances related to such need arise”. What does that even mean? My best legal guess is that if an employee nursing a child returns to work three months after the baby is born, then her two-year time period will start running on the date of her return. But don’t let this ambiguity make you anxious. Employers should be patient and remember that only 35% of US babies are still breastfed at all after they are 12 months old. So many employees will not request this accommodation for two years. If an employee is still taking these breaks when the child is older than two years, call your employment lawyer for advice.
- Although few employers made this distinction in the past, exempt salaried workers were not covered by the ACA nursing mothers provisions. They now have the same rights to nursing breaks under the PUMP Act as hourly workers had with the ACA. Of course, the challenging matter for employers of trying to figure out how to pay an hourly employee who takes nursing breaks is not an issue for salaried employees, because they are paid the same amount every day regardless of the number of breaks they take.
- Before an employee complains to the EEOC or otherwise sues the employer over violating the PUMP Act, the employee has to tell the employer about its violation of the PUMP Act and give the employer 10 calendar days to start providing an adequate space and time for the employee to breastfeed or pump. In other words, there is a 10-day grace period for you to get your act together if you have somehow failed to comply with the PUMP Act with a particular employee.
The other provisions of the PUMP Act will be administered identically to the ACA provisions that have been in effect for 12 years, so most employers will have to make few significant changes to comply:
- The employer must provide as many breaks as the employee says are necessary and allow reasonable time during each break for the employee to express milk. This will vary from employee to employee.
- The employer must provide a private, locked space that is not a bathroom for the employee to use during a nursing break or allow the employee to go off campus to a private place.
- The Fair Labor Standards Act requires that an employer must pay the employee during short breaks of less than 20 minutes, just like you pay for short coffee breaks, but employers can require the employee to clock out for longer breastfeeding breaks.
- Employers with fewer than 50 employees don’t have to comply with these requirements if it would cause an “undue hardship”, meaning significant difficulty or expense when compared to the size, financial resources, nature and structure of the employer’s business overall. As I have noted before, this is a very difficult test for employers to meet, so I advise against relying on this exception unless you have discussed it thoroughly with your employment attorney.
What do you as an employer need to do right now to comply with the PUMP Act?
- Make sure you have a written nursing mothers’ policy in your handbook and update it with these new provisions.
- Designate a locked room in your workplace (not a bathroom) where these breaks can be taken (extra points if you add a small dorm fridge to store the expressed milk until the end of the workday).
- Finally, educate yourself on the challenging pay provisions for hourly workers relating to these breaks.
The Pregnant Workers Fairness Act (PWFA)
Employers already had to avoid discriminating against pregnant workers under the provisions of the Pregnancy Discrimination Act, passed in 1978. So what does the new PWFA add to that 45-year-old protection? Like disability and religion, with the PWFA, pregnancy now has the protection of “accommodation” in addition to “no discrimination”.
Beginning on June 17, 2023, employers with 15 or more employees must reasonably accommodate employees (and applicants) who have limitations because of physical or mental conditions related to pregnancy, childbirth or related conditions. These limitations do not have to rise to the level of disability under the Americans with Disabilities Act (ADA). For example, a pregnant employee may not have a condition that limits a major life activity as required by the ADA, but just needs reasonable accommodation to take more frequent bathroom breaks. The PWFA now protects her right to those frequent breaks.
It is important to note that the PWFA specifically says that paid or unpaid leave is not considered an appropriate accommodation unless no other possible job modification is available. In other words, you can’t just skip the interactive accommodation process and send the pregnant employee home until she “gets better” to avoid having to accommodate her.
The advice I always give when it comes to accommodations still applies with this new law—figure out how this situation can work for both you and the employee rather than just assuming that it can’t work. Everything you need to know about accommodating pregnant workers and those who have recently given birth was discussed in my blog in 2015 when the U.S. Supreme Court decided Young v UPS. The only difference now is that you cannot avoid light duty or other accommodations just because other employees, such as those on worker’s comp leave, aren’t given the same privilege. You are now required to treat pregnant employees and new moms differently, even better, if that is what it takes to reasonably accommodate them.
As with most new employment laws, the most important thing you can do right now as an employer is to put a written policy in place. Your policy should tell employees how and when to request pregnancy accommodations. Then train your supervisors and first line managers to notify Human Resources or you immediately if a pregnant worker mentions needing some help to perform her job because of her pregnancy.
Don’t confuse these new laws with paid family leave. Neither federal nor Texas law yet requires an employer to provide any paid pregnancy or maternity leave.