Increased Legislative Protections for Pregnant and Breastfeeding Workers that Employers Need to be Aware of

On December 29, 2022, President Biden signed the Fiscal Year 2023 Omnibus Spending Bill into law. The bill includes two acts that help working mothers who are pregnant or breastfeeding. The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (known as the PUMP Act) were both part of the bill.

Brief details of the Pregnant Workers Fairness Act (PWFA)

This bill prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice to:

  • fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
  • require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
  • deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
  • require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
  • take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices. The bill also prohibits state immunity under the Eleventh Amendment to the Constitution from an action for a violation of this bill.

Brief details of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP)

This bill expands workplace protections for employees with a need to express breast milk. Specifically, it expands the requirement that employers provide certain accommodations for such an employee to cover salaried employees and other types of workers not covered under existing law. Further, time spent to express breast milk must be considered hours worked if the employee is also working.

The bill works in conjunction with the federal law which requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk (Section 7 of the FLSA). Employers are also required to provide a place, other than a bathroom, which is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

This article offers practical advice to employers for PWFA and PUMP compliance, with one of the most salient suggestions being “when an employee requests an accommodation…, Human resources professionals should think about how to make this work, not this will never work.” A second article suggests five ways managers can support pregnant employees which includes helping to negotiate parental benefits, offering flexible work options, accommodating time off for doctors’ appointments, facilitating interactions with coworkers, and intentionally creating an inclusive organizational climate. The article concludes by stating, “Despite being illegal, pregnancy discrimination still takes place in the workplace, and our research suggests it can have serious implications for pregnant employees and their babies. Given that approximately 85% of working women will be pregnant at some point during their careers, we recommend that managers take steps to address this discrimination head-on. Above all, we recommend that managers strive to maintain an open dialogue with pregnant employees about what types of support they need.”

President Biden showed his support for the PWFA in a statement where he said, “Across our country, too many pregnant workers are forced to choose between their health and a paycheck. They can be fired for taking too many bathroom breaks, or forced to go on unpaid leave due solely to being pregnant. These practices are unfair and often dangerous. It is long past time that all workplaces treat pregnant employees with dignity, respect, and fairness.”

Additional support has come from countless women advocacy groups who have applauded the passage of the bills. One person in particular, Fatima Goss Graves, President and CEO of the National Women’s Law Center (NWLC), commented, “Ensuring reasonable accommodations are available for pregnant workers is a win-win for workers who will continue doing their jobs during their pregnancies and for employers who will retain their workforce. …Today’s thrilling victory for pregnant workers is a recognition and affirmation that pregnancy should not cause families to be pushed into poverty and a reminder that lawmakers have the power to make people’s lives better.”

Resources

U.S. Department of Labor

Mayo Clinic: Working during pregnancy: Do’s and don’ts

American Pregnancy Association: Financial Help for Pregnant Women

Benefits.Gov: Resources for Moms