Benefits and Compensation

Businesses Face Expanded Rights for Nursing and Expecting Mothers

New federal protections will soon take effect for employees who are expecting mothers and nursing mothers. Employees may seek relief for lost wages, reinstatement, and other legal remedies under the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act) and the Pregnant Workers Fairness Act (PWFA), which become effective April 28, 2023, and June 27, 2023, respectively. With these dates fast approaching, employers should evaluate their policies surrounding nursing and pregnant employees.

Prior Protections for Pregnant Workers Were Limited

Before the enactment of these laws, protections for pregnant and nursing workers were limited under federal law. The Affordable Care Act amended the Fair Labor Standards Act (FLSA) in 2010 to provide protections for break time and space to pump to nonexempt employees, but those protections did not extend to FLSA-exempt employees. The PUMP Act extends protections to exempt employees and provides additional protections, including extending eligibility from a 1-year period after the child’s birth to a 2-year period. This aligns with the recently updated American Academy of Pediatrics recommendation for breastfeeding babies for 2 years. Previously, under federal law, employers had to provide reasonable accommodations only when an individual’s pregnancy, childbirth, or related medical condition rose to the level of a disability under the Americans with Disabilities Act (ADA) or when accommodations were made for other similarly situated, but nonpregnant, workers. The PWFA broadens the rights of pregnant employees and requires employers to accommodate limitations related to pregnancy itself, meaning employees do not need to have a disability related to pregnancy.

What Employers Need to Consider with the Enactment of the PUMP Act and PWFA

With the passage of the PUMP Act and the PWFA, employers should examine whether they are providing adequate time and appropriate space for workers to express breast milk and whether they have a system to allow pregnant workers to request reasonable accommodations. If a business is not prepared to provide this newly required support, it could result in a liability for monetary damages to the aggrieved worker.

Employers Must Provide Time and a Place to Express Breast Milk

Nearly all employees who are nursing are protected under the PUMP Act, and businesses must provide reasonable break time and space to express breast milk at work for 2 years after the child’s birth. The law applies to individuals and companies covered by the FLSA, but it does not apply to railway workers (until 2026), flight attendants, and pilots. Also, employers with fewer than 50 employees are exempt as small employers if compliance with the law would cause undue hardship because of significant difficulty or expense.

In addition to the logistical burdens, employers must pay nonexempt employees for time spent expressing breast milk if the employees are not completely relieved from all duties and responsibilities throughout the entire break for expressing breast milk. This means that if an employee is performing any work, e.g., answering e-mails or taking calls, the break must be paid. Employees who are exempt employees under the FLSA must receive their full weekly salary, regardless of any break for expressing breast milk.

Employers must also provide a place that is not a bathroom to express breast milk. The location must be shielded from view and intrusion from coworkers and the public. An office that is being occupied by someone else is likely insufficient unless it is always available when needed by employees. If a room cannot be permanently designated or if two employees need the same space, the business should create a schedule to ensure that space is available for pumping as needed.

If employees complain they have not been provided a space to pump, employers should act quickly. Employers have 10 calendar days under the law to cure the issue and to improve and/or provide the space allocated to express breast milk. If the business ignores the complaint or fails to adequately resolve the issue, employees can commence an action for noncompliance or file a claim in court. This notice requirement does not apply when an employee is terminated for making the request, and it does not apply if an employer fails to provide reasonable break time. Under those circumstances, an employee can file a claim immediately.

As of April 28, 2023, employees will be able to file a complaint with the U.S. Department of Labor’s Wage and Hour Division or file a cause of action in court. Remedies include reinstatement, promotion, lost wages and an additional equal amount as liquidated damages, compensatory damages, and punitive damages where appropriate.

Mandated Accommodations to Pregnant Employees

Beginning on June 27, 2023, employers with 15 or more employees must comply with the PWFA and begin providing accommodations for pregnancy. The PWFA incorporates the disability law concept of the interactive process—a good-faith discussion between the employer and employee to try to identify an appropriate reasonable accommodation—and applies it to pregnancy. Employers must be prepared to engage in dialogue with employees about accommodations needed for pregnancy.

According to the Equal Employment Opportunity Commission (EEOC), this may require employers to ensure employees have “the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.” Employers should educate their managers immediately to be aware that such requests should be evaluated on a case-by-case basis. Come June 27, 2023, a pregnant employee no longer needs to have a pregnancy-related health condition to be entitled to an accommodation.

An employer cannot decline or ignore such a request without engaging in a discussion with the employee. This is important because, under existing federal laws such as Title VII of the Civil Rights Act of 1964, the ADA, and the Pregnancy Discrimination Act, employees without pregnancy complications did not have a right to an accommodation. In other words, some pregnant employees who were not suffering from severe pregnancy complications had to take unpaid leave or resign if the job required work that posed a risk to their health or the health of their babies. This law will allow many pregnant employees to continue to safely work with accommodations up until giving birth. Managers who are fielding requests from pregnant employees must be aware of these new obligations.

The Bottom Line

Given these new federal legal requirements, businesses need to carefully review their current policies and practices to ensure these new rights of pregnant and nursing workers are protected.

Bryn Goodman is a Partner at Fox Rothschild, LLP.

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