The recently enacted Consolidation Appropriations Act of 2023 (H.R. 2617) included two provisions for pregnant and nursing mothers.
Expanded Lactation Break Rights to Exempt Employees
The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act amends the lactation provision of the Fair Labor Standards Act (FLSA)—inserted by the Affordable Care Act (ACA)—to add that exempt workers (in addition to nonexempt workers) have the right to reasonable break time to express breast milk in a private secured place that is not a bathroom for one year after a child’s birth.
The law also claims to clarify that the compensability of this time (with respect to nonexempt employees), but it really doesn’t do that. It maintains the presumption that the time is non-compensable, provided the employee is completely relieved of their job duties, but employers already knew that.
What really would’ve been helpful would be establishing a minimum time threshold for the pumping break to be non-compensable, but I digress.
Employers should continue to exercise caution when declaring any break of fewer than 20 minutes to be non-compensable, including lactation breaks. Employers of fewer than 50 employees may be exempted if they can meet the standard of showing compliance would be an undue hardship (consult counsel first!).
The PUMP Act takes effect on April 28, 2023.
Beware Misinformation about the PUMP Act!
Multiple respected national news sources have reported that the PUMP Act also extends the pump break entitlement to two years after the birth of a child. It doesn’t do this, however. It maintains the one-year limit.
It appears that reporters have read a stand-alone version of the bill introduced in the House earlier this year that would have enlarged the entitlement to two years (H.R. 3110), but, again, that version was not what was placed into the omnibus bill that was passed into law, which maintains the one-year limit.
Reasonable Accommodation Rights for Pregnant Employees
The Pregnant Workers Fairness Act (PWFA) creates an explicit right to reasonable accommodation for employees with limitations due to pregnancy, childbirth, or a related medical condition, even if that condition isn’t a disability as defined by the Americans with Disabilities Act (ADA).
The PWFA also contains anti-retaliation provisions consistent with other employment laws. The PWFA doesn’t displace any other law that provides more comprehensive protection for employees. Claims under this Act will have to be administratively exhausted before the Equal Employment Opportunity Commission (EEOC), and suits and damages will be subject to the same procedures and limitations on damages as are available under Title VII of the Civil Rights Act of 1964.
The PWFA becomes effective on June 27, 2023. The law directs the EEOC to issue regulations for the PWFA within one year.
What’s the Practical Impact of the PWFA?
Not much. It’s hard to imagine a hypothetical where an employer commits an act that would violate the PWFA but not violate the PDA. This is especially true in light of the U.S. Supreme Court’s decision in Young v. UPS and the expanded definition of disability in the Americans with Disabilities Act Amendment Act (ADAAA), which specifically encompassed most pregnancy-related conditions, even if they were temporary.
The PWFA also makes explicit two related legal standards that still trip up employers when it comes to pregnant employees:
- An employer may not force a pregnant employee into a work restriction when she hasn’t requested it and there is no observed impairment in the employee’s performance; and
- An employer may not force a pregnant employee to take leave (even paid leave) if a reasonable accommodation exists that permits her to work.