More than 45 years after the passage of the Pregnancy Discrimination Act (PDA), pregnant and nursing employees still face challenges in the workplace. This is particularly true in professions that require physical activities that may pose difficulty to employees during some stages of pregnancy. Likewise, nursing workers without a private office or break space may struggle to meet lactation-related needs. The new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, signed into law on December 29, 2022, provide additional protections for pregnant and nursing workers.
What Does the PWFA Require?
The PWFA requires employers with at least 15 employees to provide reasonable accommodations to pregnant workers so long as they do not impose an undue hardship. Many courts have held that pregnancy alone is not a disability entitled to an accommodation under the Americans with Disabilities Act (ADA). The PWFA will require employers to provide reasonable accommodations to employees and applicants with known temporary limitations related to pregnancy, childbirth, and related medical conditions. The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as the ADA and requires a similar interactive process to arrive at an appropriate reasonable accommodation. The accommodation requirements of the PWFA become effective on June 27, 2023.
The PWFA does not preempt more generous state and local laws, such as Washington’s Pregnancy Accommodation Law, which requires employers to provide certain accommodations to pregnant employees without written certification from a healthcare provider (e.g., more frequent/longer restroom breaks, modified food and drink policies, etc.).
What Does the PUMP For Nursing Mothers Act Require?
The PUMP for Nursing Mothers Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide nursing mothers with reasonable break time to express breast milk for one year after a child’s birth. An employer’s obligation to provide a private place to express breast milk (other than a bathroom) continues under the FLSA. The PUMP for Nursing Mothers Act covers all employees, not just non-exempt workers. Break time to express breast milk is unpaid unless otherwise required by state or federal law. For non-exempt workers, lactation break periods are paid if they are taken during an otherwise paid break period or in circumstances where employees are not completely relieved of work duties for the entire break period. Exempt employees are paid their full weekly salary regardless of whether they take break time to express breast milk.
The PUMP for Nursing Mothers Act went into effect immediately upon signing, but there is a 120-day delay of enforcement until April 28, 2023.
Small employers with fewer than 50 employees may claim an exemption from the requirements of the PUMP for Nursing Mothers Act if compliance would cause undue hardship due to significant difficulty or expense.
What are Existing State Law Requirements for Lactation Breaks?
Washington state law already requires employers with eight or more employees to provide reasonable break time for employees to express breast milk for two years after a child’s birth in a private location other than a bathroom.
Oregon law also requires employers with ten or more employees to provide reasonable rest periods to express breast milk in a private space other than a restroom for the first 18 months following a child’s birth. Small Oregon employers with ten or fewer employees are not required to provide rest periods to express breast milk if doing so would impose an undue hardship on the operation of the business.
Eligible members are encouraged to access the mozzo Resource Library for pregnancy-related resources, including Summary of Laws Affecting Pregnancy Childbirth and Related Leaves of Absence Keynote, Pregnancy Leave and Accommodation Policy, and Parental Leave of Absence Guide.
Members may also contact an Archbright HR Advisor with any questions through the HR Hotline chat feature on mozzo or emailing us.