New Federal Laws Enacted Through Consolidated Appropriations Act Of 2023 Strengthen Workplace Protections For Pregnant And Nursing Employees – Employee Rights/ Labour Relations

The Pregnant Workers Fairness Act (PWFA) and the Providing
Urgent Maternal Protections for Nursing Mothers Act (PUMP for
Nursing Mothers Act) were enacted through the Consolidated
Appropriations Act of 2023. Together, these two Acts establish
enhanced protections for childrearing employees and impose
additional obligations on employers.

The PWFA goes into effect on June 27, 2023, and mandates that
employers with at least 15 employees provide reasonable
accommodations for the known, temporary limitations of an employee
or job applicant caused by pregnancy, childbirth, or related
medical conditions. The operative provisions of the PWFA closely
mirror those of the Americans with Disabilities Act (ADA). For
example, the PWFA adopts “reasonable accommodation” and
the “undue hardship” exception as those terms are
understood under the ADA. Likewise, the PWFA calls for the employer
to engage in the familiar interactive process for determining an
appropriate accommodation once an employee requests a reasonable
accommodation to perform the essential functions of their job.
Finally, the PWFA establishes a limitation on damages when an
employer can demonstrate that it put forth a good faith effort in
consultation with the qualified employee to identify an alternative
reasonable accommodation that would not cause an undue
hardship.

The PWFA distinguishes itself from the ADA by expressly
requiring that employers provide reasonable accommodations for the
temporary mental and physical limitations of an employee arising
from pregnancy, childbirth, or related medical conditions,
regardless of whether such limitations amount to a
“disability” under the ADA. This is noteworthy because
pregnancy itself is generally not considered a
“disability” within the meaning of the ADA. As a final
note, the PWFA does not preempt any federal, state, or local laws
that provide greater or equal protection for individuals affected
by pregnancy, childbirth, or related medical conditions.

The PUMP for Nursing Mothers Act expands upon a previous
amendment to the Fair Labor Standards Act (FLSA) that requires
employers to provide eligible employees with reasonable break time
to express breast milk and a clean, private place, other than a
bathroom, in which to do so for one year after the birth of a
child. Under the previous amendment to the FLSA, entitlement to
lactation break time and space extended only to non-exempt
employees. The PUMP for Nursing Mothers Act expands this
entitlement to cover salaried employees and other types of workers
not previously covered under the prior amendment to the FLSA.
Crewmembers of air carriers are exempted from the requirements of
this Act.

The PUMP for Nursing Mothers Act further clarifies that an
employee must be compensated for time spent on lactation breaks
only if: the employee is not completely relieved of duty during the
break; the employee expresses milk during what would otherwise be
paid break time;or compensation is otherwise required by federal,
state, or local law. The Act further provides for, with some
exceptions, a 10-day period for employers to comply with the law
after notification from an employee that adequate space has not
been provided. Finally, the Act maintains the “undue
hardship” exemption from compliance for employers with fewer
than 50 employees.

The expanding provisions of the PUMP for Nursing Mothers Act
took effect upon its enactment in December 2022. Certain
clarifications to the remedies provided for under the Act take
effect on April 28, 2023, and the application of the Act’s
requirements to rail carriers and motorcoach service operators is
delayed for three years. The PUMP for Nursing Mothers Act does not
preempt state or local laws that provide greater protections for
nursing individuals.

Employers should strongly consider taking the following steps to
ensure compliance with the requirements of the PWFA and PUMP for
Nursing Mothers Act:

PWFA

• Ensure that any existing reasonable accommodation policies make
  clear that they apply to employees who are pregnant, have
  pregnancy-related conditions, or have recently given birth.




• Work diligently with eligible employees to identify appropriate
  reasonable accommodations before suggesting they take paid or
  unpaid leave.

PUMP for Nursing Mothers Act

• Ensure that any existing reasonable accommodation polices
  clearly state that they include reasonable break time for employees
  who need to express breast milk.




• Evaluate all facilities to ensure they include a place, other
  than a bathroom, that is adequately shielded from view and free
  from intrusion from coworkers and the public, and that the space is
  available to employees in need of a place to express breast
  milk.

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.