On December 29, 2022, as part of the 2023 Omnibus Spending Bill, President Biden signed two pieces of legislation into law that affect pregnant women’s and nursing mothers’ rights in the workplace: the Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act.
Pregnant Worker’s Rights to Reasonable Accommodations Clarified
First, the Pregnant Workers Fairness Act, which goes into effect in June 2023, will require employers to grant reasonable accommodations for pregnant workers, similar to the reasonable accommodations that are already required for disabled employees. Specifically, employers with 15 or more workers will be required to reasonably accommodate job applicants and employees who have conditions related to pregnancy or childbirth, and the law will also prohibit employers from discriminating against those individuals because of their need for such accommodation. The law essentially mirrors the protections provided to disabled workers under the Americans with Disabilities Act (ADA), even adopting the ADA’s definition of "reasonable accommodation."
Employers are, of course, already required to comply with the federal Pregnancy Discrimination Act, which protects employees from discrimination based on pregnancy or related conditions, but the federal law didn’t clearly require reasonable accommodations. Prior to the passage of the Pregnant Workers Fairness Act, an employer’s legal obligation to reasonably accommodate pregnant workers was governed by a confusing hodgepodge of case law and various state law protections.
Federal courts had generally relied on the 2015 U.S. Supreme Court case Young v. United Parcel Service, Inc., which held that the Pregnancy Discrimination Act did not require an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as to employees with similar but non-pregnancy related work limitations, but that courts must evaluate whether an employer’s accommodations policies treat pregnant workers less favorably than non-pregnant workers with similar limitations and whether there were any legitimate, non-discriminatory bases for doing so. In essence, the Young opinion created a strict test for determining whether employers could treat pregnant employees differently than similarly disabled employees, which in practice made doing so legally risky, but not
impossible. For example, in EEOC v. Wal-Mart, the Seventh Circuit Court of Appeals held that Walmart’s policy of offering temporary light duty work to workers injured on the job pursuant to Wisconsin’s workers’ compensation law constituted a legitimate, non-discriminatory justification for denying those same accommodations to pregnant employees. The Walmart decision, which occurred in August 2022, is credited with putting pressure on Congress to finally move on the Pregnant Workers Fairness Act, which had passed the House in May 2022 and had cleared the Senate Health, Education, Labor and Pensions Committee in August but hadn’t progressed further. Now, with the Pregnant Workers Fairness Act being signed into law, it’s finally clear that pregnant workers and
job applicants must be provided reasonable accommodations in the same way that disabled workers are.
Rights to Break Time and Private Place to Pump Extended to More Workers
Second, the PUMP for Nursing Mothers Act extends the right to receive break time to pump and a private place to pump at work to more employees who are nursing mothers. Previously, Section 7(r) of the Fair Labor Standards Act (FLSA) added in 2010 as part of the Affordable Care Act, required "reasonable" break times for employees to express breast milk for 1 year after the child’s birth "each time such employee has need to express the milk," as well as "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." 29 U.S.C.A. § 207. Prior to the passage of the PUMP for Nursing Mothers Act, the law only applied to employees who were not FLSA-exempt. The new law
requires that almost all employers with over 50 employees provide a private space and break times for nursing mothers to express breastmilk, regardless of the employee’s exempt/non-exempt status under the FLSA. As of the date of this First Alert, the Department of Labor has not yet published any guidance, but states that "[m]ore details about the changes in the law are forthcoming."
Working its way through Congress prior to passage, the law faced opposition from lobbyists in the railroad, trucking, and airline industry, who argued that the required private lactation space and break times would be "overly broad and burdensome," and that such requirements would disrupt service and cause delays. As a result, the law provides some exemptions for the transportation industry. Specifically, air carriers aren’t subject to the law; rail companies are exempt from providing space other than the restroom for their workers, (but would have to install a curtain or different type of screening protection if requested by the nursing employee); and motor coach companies don’t have to remove
or retrofit seats to accommodate nursing workers, but employees can express breast milk during scheduled stops.
Employers should be mindful of these new laws as to expecting employees and new mothers. Our Labor & Employment team is available to counsel and assist as to compliance with these laws in your workplace.