New Federal Protections for Pregnant and Nursing Employees

In late December 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protection for Nursing Mothers Act (PUMP Act). The newly enacted PWFA and PUMP Act expand federal protections for both pregnant women and nursing mothers. 

This blog post will provide an overview of new employee protections under the PWFA and PUMP Act. This blog post will also address what rights pregnant and nursing workers have under the PWFA and PUMP Act and how employers can comply with these new laws. 

The PWFA

The PWFA provides protections for pregnant employees (including job applicants) with known limitations related to pregnancy, childbirth, or other related physical or mental health conditions. The protections under the PWFA are intended to enable pregnant employees to continue working while maintaining a healthy pregnancy. The PWFA becomes effective on June 27, 2023. 

Under the PWFA, employers with 15 or more employees will be required to provide reasonable accommodations for qualified employees (including qualified applicants) with known temporary limitations due to pregnancy, childbirth, or related medical conditions.

As with the Americans with Disabilities Act (ADA), an employee or applicant is “qualified” if he or she can perform the essential functions of the position with or without reasonable accommodation. In addition, under the PWFA, an employee or applicant is still qualified even if he or she is unable to perform an essential function so long as any limitation is temporary, the essential function could be performed in the near future, and the temporary limitation can be reasonably accommodated. 

Like the ADA, employers will be required to provide reasonable accommodations unless doing so would impose an undue hardship on the employer’s business. Additionally, like the ADA, employers are required to engage in the interactive process. This means that an employer must engage in a good faith discussion with an employee or applicant to identify an appropriate reasonable accommodation.

Under the PWFA, either the employee or his or her representative can make the employer aware of the employee’s limitation(s), thus potentially triggering the employer’s duty to engage in the interactive process. Additionally, under the PWFA, employers cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided. 

The PWFA does not include a list of specific examples of reasonable accommodations. However, potential reasonable accommodations may include that an employer provides additional restroom breaks, reduce lifting requirements, provide additional or modified work equipment (e.g., a stool for an employee who is typically required to stand), provide leave or time off (if agreed upon), among other examples. 

Additionally, the PWFA makes it unlawful to retaliate against an employee or applicant who requested, or is receiving, a reasonable accommodation. For example, it will be unlawful for an employer to fire or demote an employee because the employee requested a reasonable accommodation related to the employee’s pregnancy.

Further, employers may not deny employment opportunities to qualified employees or applicants if the denial is based on the employer’s requirement to make a reasonable accommodation. For example, an employer cannot refuse to hire an applicant because doing so would require that the employer provide the applicant a reasonable accommodation upon hire. 

Under the PWFA, a covered employee may bring a lawsuit against their employer for violations of the Act. However, the employee must first exhaust all administrative remedies by filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission or the state or local agency. 

Of note, the PWFA does not preempt or replace any state or local laws that are more generous in their protections related to pregnant employees. Although other states may provide more generous protections, Florida does not currently have any law that provides protections similar to the PWFA.

The PUMP Act

The PUMP Act expands the Fair Labor Standards Act and provides protections for nursing employees. Under the PUMP Act, employers are required to provide reasonable break time for employees to express breast milk for the employees’ nursing child for two years after the child’s birth.

Additionally, employers must provide nursing employees with a clean and private space, other than a bathroom, where the employee can express breast milk. The PUMP Act became effective on December 29, 2022, when it was signed into law. However, certain remedies for violating the PUMP Act will not take effect until April 28, 2023.  

The PUMP Act applies to all employers regardless of the number of employees. However, the PUMP Act does not apply to employers with fewer than 50 employees if the requirements under the PUMP Act impose undue hardship because of significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.  

Importantly, the PUMP Act extends rights and protections to exempt and nonexempt nursing employees. This means that covered employers must provide reasonable break time and space for all employees covered by the FLSA. For exempt employees, employers must continue to pay the nursing employees their full salary, regardless of any break time spent expressing breast milk. For nonexempt employees, an employer may be required to pay a nursing employee for break time spent expressing breast milk if, for example, the nursing employee is not totally relieved of work duties during the break time. 

Under the PUMP Act, an employee may file a lawsuit against the employer for violations of the PUMP Act. Generally, however, the employee must first provide notice and allow the employer 10 days to remedy the violation before filing suit. In cases where an employee’s employment has been terminated because the employee made a request for break time or a place to express milk, the employee may immediately file suit without providing notice to the employer.

Additionally, an employee may immediately file suit against their employer if the employer has indicated that it has no intention of complying with the PUMP Act by providing adequate space to express breast milk.  

As with the PWFA, the PUMP Act does not preempt any state or local laws that are more generous in their protections related to nursing employees.

Key Takeaways

Employers should review and update their existing policies to ensure compliance with the PWFA and PUMP. Additionally, employers may need to conduct additional workplace training for managers and Human Resources employees to ensure compliance under these laws, especially for requests for reasonable accommodations under the PWFA and the interactive process.

Employees should know and understand their new rights under the PWFA and PUMP Act. Nursing employees are entitled to break time and a private space for expressing breast milk at the workplace under the PUMP Act.

And beginning on June 27, 2023, qualified employees and job applicants are entitled to reasonable accommodation related to their pregnancy or childbirth under the PWFA. Florida employees who believe that their employer has violated the FWPA or PUMP Act should consult with a Florida attorney.

Contact Us Today

Florida employers that are concerned about compliance with the PWFA and PUMP Act should consult a Florida attorney. BT Law Group has extensive experience in reviewing and updating employment policies and can help Florida employers with compliance and training under these new laws. 

BT Law Group works with Florida employees to determine potential claims under the PWFA and PUMP Act and to protect employee workplace rights, including collecting unpaid wages, backpay, and other available damages under the PWFA and PUMP.