Pregnant Workers Fairness Act
President Joe Biden recently signed into law the Pregnant Workers Fairness Act
(PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP
Act), expanding federal protections for both pregnant and nursing workers.

The PWFA creates a legal obligation for employers to grant reasonable
accommodations for pregnant workers. Under the new law, which will go into effect in
June 27, 2023, employers with 15 or more employees will be required to provide
reasonable accommodations for qualified employees and job applicants with temporary
physical or mental limitations due to pregnancy, childbirth or related conditions.

Employees and applicants are qualified if they, with or without a reasonable
accommodation, can perform the essential functions of the employment position. An
individual is still qualified if the inability to perform an essential function is for a
temporary period, the essential function could be performed in the near future, and the
inability to perform the essential function can be reasonably accommodated.

The PWFA, like the Americans with Disabilities Act (ADA), obligates employers to
provide reasonable accommodations unless doing so imposes an undue hardship. The
PWFA incorporates the ADA concept of the interactive process, the good-faith
discussion between the employer and employee to try to identify an appropriate
reasonable accommodation.

Under the new law, employers will be prohibited from requiring an employee or
applicant to accept an accommodation other than one arrived at through the interactive
process. An employer may not require an employee to take a paid or unpaid leave if
another reasonable accommodation can be provided. Retaliation against an employee
or applicant for requesting a reasonable accommodation is prohibited.

Previously, under federal law, most courts determined that pregnancy was not
considered a disability entitled to a reasonable accommodation under the ADA. Rather,
employers were only required to provide reasonable accommodations when an
individuals pregnancy, childbirth, or related medical condition rose to the level of a
disability under the ADA or when accommodations were made for other similarly
situated, but nonpregnant, workers. Some examples of accommodations that may be
required under the PWFA are providing additional restroom breaks, reducing lifting
requirements, providing leave for an employee who does not qualify for leave under the

Family and Medical Leave Act (FMLA) and providing different office equipment (e.g.,
providing a stool for an employee who typically is required to stand).

Protections for Nursing Mothers
The PUMP Act amends the Fair Labor Standards Act (FLSA) effective immediately
with the exception of certain changes regarding remedies. It requires that employers
provide a reasonable break time for an employee to express breast milk each time the
employee has a need to express the milk for one year after the child's birth. Employers
must provide a place, other than a bathroom, that is shielded from view and free from
intrusion in which the employee can express breast milk.

While the Affordable Care Act of 2010 amended the FLSA to provide these protections
to nonexempt employees, the PUMP Act extends the protections to all employees,
nonexempt and exempt. Certain workers in the transportation industry are excluded
from the PUMP Act.

An employer is generally not required to provide a paid break under these amendments;
however, the PUMP Act reemphasizes the FLSA principle that time spent to express
breast milk is considered "hours worked" if the employee is not completely relieved from
duty during the entirety of the break. If a nonexempt employee continues to work, or is
interrupted during the break, then they must be paid for the entire break. Exempt
employees continue to receive their full weekly salary, regardless of any break.

Notably, the PUMP Act does not apply to employers with fewer than 50 employees if
certain requirements under the law would cause an undue hardship to the employer.
Workers can bring a lawsuit against their employer for a violation of the PUMP Act or
the PWFA.

Employers should note that many state and local laws already provide similar or greater
protections and accommodation requirements for pregnant and nursing workers. The
PUMP Act and the PWFA do not preempt any state and local laws that provide more
generous protections. Further, on a federal level, the Pregnancy Discrimination Act of
1978 already prohibited discrimination in employment on the basis of pregnancy,
childbirth, or a related medical condition.

Already have related policies in place?
While many employers may have policies relating to pregnancy, accommodation and
nursing workers, employers should review those policies to ensure they are compliant
with these new federal laws and make any necessary updates. Additionally, employers
will want to ensure that managers and supervisors are trained on how to handle
pregnancy accommodation requests and requests to express breast milk in the
workplace.