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Be Prepared to Accommodate Pregnant & Nursing Employees

By: Celia J. Collins, Esq., Johnstone Adams LLC

Two significant protections for pregnant and nursing workers were signed into law by the President on December 29, 2022. The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. The PUMP Act (Providing Urgent Maternal Protection for Nursing Mothers) expands the lactation break requirements of the 2010 Patient Protection Affordable Care Act. Both laws require accommodations for pregnant and nursing employees. Now is the time for employers to be prepared and update their procedures and handbooks.

The Pregnant Workers Fairness Act requires employers with 15 or more employees to provide reasonable accommodations for an employee’s known physical and mental limitations related to pregnancy, childbirth or related medical conditions, regardless of whether the condition meets the definition of a disability under the ADA.

The employee must communicate the condition to the employer. A pregnant employee qualifies for a reasonable accommodation if the employee’s inability to perform an essential job function is temporary, and the essential job function can be performed in the near future and the inability to perform an essential job function can be reasonably accommodated. Accommodation is not required if it imposes a reasonable hardship on the operations of the employer’s business.

Employers are required to engage in an interactive process with the employee in analyzing possible reasonable accommodations for her limitations.

The Act specifically makes it unlawful:

  • To fail to make a reasonable accommodation that is not an undue hardship,

  • To require the employee to accept an accommodation other than one arrived at through an interactive process,

  • To deny the employee job opportunities because of her need for an accommodation,

  • To require the employee to take leave, paid or unpaid, if another reasonable, accommodation is available, and

  • To retaliate against the employee because of her request for accommodation.

Rights under the Act are subject to the EEOC process, including filing a charge for discrimination and the eventual right to file a lawsuit in Federal Court. Violations of this Act can carry the same damages as violations under Title VII of the Civil Rights Act, including backpay, front pay, compensatory damages, punitive damages and recovery of attorney’s fees and costs.

The law provides significant new protection for pregnant employees. While Title VII and the Pregnancy Discrimination Act prohibit pregnancy discrimination, they do not require accommodations for pregnancy-related medical conditions. (Under case law, however, there may be a violation if accommodations are provided for similar conditions in non-pregnant employees but not for pregnant employees. See Young v. UPS, 575 U.S. 206 (2015)). The ADA does not require accommodations based upon pregnancy alone unless there are certain complications of pregnancy.

The Act requires the EEOC to issue regulations within one year which include examples of reasonable accommodations for limitations relating to pregnancy. Possible needed accommodations for normal pregnancy limitations may include scheduling changes to accommodate morning sickness, light duty to accommodate lifting restrictions and more frequent bathroom breaks.

Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act) expands the coverage provisions of the lactation break requirements of the 2010 Patient Protection Affordable Care Act (PPACA), amending the Fair Labor Standard Act. The law expands lactation rights to exempt employees who were not covered by the prior law. Most requirements of the Act were effective immediately upon its passage.

As under the prior law, employers must provide all nursing employees with reasonable time to express milk for up to one year after childbirth each time the employee has the need to express milk. The employer must also provide a location other than a bathroom that is shielded from view and free from intrusions from co-workers and others in which the employee may express milk. The employer is only required to pay for such breaks to the extent it provides paid break time to all employees. If an employee is not completely relieved from duty during the entirety of the lactation break, however, it is considered time worked and should be paid.

There is an exception for employers of less than 50 employees if the requirements for compliance with the Act impose an undue hardship and cause difficulties or expense in relation to the size, financial resources, nature or structure of the business.

Prior to initiating any action, an employee must notify her employer of the failure to comply and provide the employer 10 days within which to come into compliance. The remedies for violation of this Act are the same as under the Fair Labor Standards Act including back pay, liquidated damages and recovery of attorney’s fees and costs. Employees may file claims under the Act by initiating a complaint with the Department of Labor Wage and Hour Division or filing a Federal lawsuit.

Moving forward, employers should review existing policies and handbooks for necessary revisions to comply with the new laws. Most importantly, supervisors must be educated regarding these new employee rights and trained to appropriately respond to employee requests for pregnancy-related job accommodation or lactation breaks.

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