US Congress Extends Greater Protections to Pregnant Women and New Mothers in the Workforce

WWHGD Legal Alert

Written by: Matt Gomes and Caitlin Kicklighter, Summer Associate
August 7, 2023

In the past year, the United States Congress extended greater protections to pregnant women and new mothers in the workforce. Two new laws passed with bipartisan support: the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA). The PUMP Act, effective April 28, 2023, extends to more breastfeeding parents the rights to receive break time and a private place to pump at work. The PWFA, effective June 27, 2023, requires employers to provide reasonable accommodations to their employees for pregnancy and childbirth-related medical conditions.

On December 29, 2022, President Biden signed the Consolidated Appropriations Act into law. This law included the PUMP Act which extends to more nursing employees the right to receive break time and a private place to pump at work. Under the PUMP Act, employers are required to provide a nursing employee with a reasonable amount of break time and a shielded space, free from intrusion, to pump as frequently as needed for up to one year following the birth of the employee’s child.

All employers covered by the Fair Labor Standards Act (FLSA) must comply with the PUMP Act. This includes any business or organization with at least two employees (1) whose annual gross volume of sales made or business done is at least $500,000; (2) that is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises, a school for mentally or physically disabled or gifted children, a preschool, an elementary or secondary school, or an institution of higher education; or (3) that is a public agency.  These employers are required to follow the breaktime requirement unless they have fewer than fifty employees and can demonstrate that compliance with the provision would impose an undue hardship. “Undue hardship” is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and/or structure of the employer’s business.

While almost entirely closing the coverage gap in the Break Time for Nursing Mothers law (enacted in 2010), airline flight crew members, such as flight attendants and pilots, remain uncovered. Airline employees who are not crew members are covered by the PUMP Act and have the same right to receive break time and space as employees in other industries. Additionally, there are special rules that apply to employees of certain rail carriers and motorcoaches.

The PUMP Act expanded the legal right to receive pumping breaks and a private space to do so to teachers, registered nurses, farmworkers, and many others. The PUMP Act also provided an avenue to these employees to file suit against an employer who violates the law where previously employees were not able to seek a monetary remedy in court. Additionally, the law clarifies that if an employee is not completely relieved from their work duties during the pumping “break,” pumping time counts as time worked when calculating minimum wage and overtime.

Congress enacted the PWFA within six months after the PUMP Act. It applies to private and public sector employers with at least 15 employees, including Congress, federal agencies, employment agencies, and labor organizations. Under the PWFA, covered employers are required to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or other related medical conditions, such as fertility treatments or postpartum depression. Employers are required to provide these accommodations unless the accommodation will cause the employer an “undue hardship.”

Because every pregnancy is different, and every job is different, the statute does not define “reasonable accommodations.” Employers and employees are left to figure out the accommodations that best meets both sides’ needs. The House Committee on Education and Labor Report on the PWFA, however, provides several examples of “reasonable accommodations” to consider, including the ability to sit or drink water; receive closer parking; flexible hours; additional break time to use the restroom, eat, and rest; exclusion from strenuous activities, including activities that involve exposure to compounds unsafe for pregnancy. See H.R. Rep. No. 117-27, pt. 1, at 22 (2021) (Conf. Rep.). These “reasonable accommodations” are required unless they would cause an “undue hardship” on the employer and its operations. Similar to the PUMP Act, the PWFA defines “undue hardship” as a significant difficulty or expense for the employer.

Prior to the passing of the PWFA there were two main sources of federal protections for pregnant women: the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act. The Pregnancy Discrimination Act of 1978 prohibits employers from discriminating because of pregnancy, and employers are required to treat pregnant workers equal to other workers. The Americans with Disabilities Act requires employers to make accommodations for those with a disability; however, the issue is that a normal pregnancy is not a disability in most circumstances unless there are pregnancy-related impairments.

The PWFA therefore eliminates some of the gaps in coverage inadvertently created by these older legal protections. Now, in order to obtain reasonable accommodation, all a pregnant worker must show is that (1) there is a limitation arising out of pregnancy, childbirth, or a related medical condition; (2) there is a reasonable accommodation that would allow the worker to continue the job; and (3) this accommodation will not impose an undue hardship on the employer.

The PWFA and the PUMP Act are important victories for new mothers and pregnant women. By closing the gaps in previous legislation, these new laws extend and afford greater protections to women nationwide.

For more information about the PWFA and the PUMP act, contact Matt Gomes.

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