United States: Biden Signs Omnibus Spending Bill Containing Expanded Pregnant And Nursing Employee Protections

After passing both houses of Congress with bipartisan support, on Dec. 30 President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) as part of an omnibus spending bill. The new laws will require employers to provide temporary and reasonable accommodations to pregnant employees and will increase workplace protections for lactating employees. The laws will take effect on June 29, 2023, allowing employers time to update their policies.

WHAT PFWA PROVIDES

The worker protections under PWFA are similar to those already in effect under the Americans with Disabilities Act (ADA). Under the new law, employers with 15 or more employees will be required to make reasonable accommodations to any known limitations relating to pregnancy, childbirth, or related medical conditions, so long as the requested accommodation does not impose an undue hardship on the employer. Mirroring the ADA, PWFA treats such requests for accommodation as protected activity and prohibits discrimination or retaliation against an employee for requesting such accommodations. Under the law, employers cannot force workers to take paid or unpaid leave in lieu of being provided a reasonable accommodation.

Although reasonable accommodations requested under PWFA will vary depending on the individual worker's specific circumstances, examples of reasonable accommodations could include reassigning employees to light duty that doesn't involve heavy lifting, more frequent breaks, or an adjusted schedule.

PWFA is intended to fill some of the gaps in the Pregnancy Discrimination Act (PDA), which prohibits employers from taking adverse employment actions because of pregnancy but does not expressly require employers to provide reasonable accommodations.

HOW WILL PFWA WORK?

Similar to the ADA, PWFA requires the employer and employee to engage in an interactive process after the request is made to determine a reasonable accommodation that does not create an undue hardship for the employer. The Equal Employment Opportunity Commission (EEOC or Commission) will administer and enforce the new law, and charges of discrimination or retaliation under PWFA will be handled in the same manner as those asserted under Title VII of the Civil Rights Act of 1964. The legislation passed by Congress directs the EEOC to develop guidelines for compliance with PWFA but gives the Commission up to two years to issues such guidance.

PUMP ACT

The PUMP Act adds protections to a 2010 law that requires employers to provide non-exempt workers who are nursing reasonable time to express breast milk and a private location (other than a restroom) to do so. The PUMP Act expands those rights to also include employees who are in exempt or typically salaried positions. The law further provides that time spent expressing breast milk must count as compensable work time if the employee is performing their regular duties at the same time.

Employers with fewer than 50 employees may seek an exemption if they can show compliance with the law would result in an undue hardship, involving significant difficulty or expense. Violations of the PUMP Act include the payment of unpaid wages, reinstatement, back and front pay, and liquidated damages.

WHAT SHOULD EMPLOYERS DO?

With the passage of these new laws, employers should review their current employment policies and revise them as needed to comply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.