Bloomberg Law
May 11, 2023, 8:00 AM

Pregnant and Nursing Parents Entitled to New Protections at Work

Christine Bestor Townsend
Christine Bestor Townsend
Ogletree Deakins

Last December, Congress passed the Consolidated Appropriations Act, which included two laws expanding the rights of pregnant and nursing employees—the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act and the Pregnant Workers Fairness Act (PWFA).

What the Laws Provide

The PUMP Act amends the Fair Labor Standards Act to require employers provide reasonable break time and private, non-bathroom space for nursing parents to pump for a nursing child’s first year of life.

The PWFA requires employers with over 15 employees to provide qualified employees and applicants with reasonable accommodations related to the known limitations of pregnancy, childbirth, or related medical conditions.

Further, the PWFA prohibits employers from requiring employees to take leave, if another accommodation can be provided, retaliating against employees for requesting accommodations or reporting/opposing unlawful discrimination, denying employment opportunities to employees based on the need for accommodation, or requiring employees to accept an accommodation other than one arrived at through the interactive process.

Remedies Under the Laws

The PUMP Act provides for both legal and equitable remedies under the FLSA—but if an employee wishes to bring an action for the employer’s failure to provide a space adequate to meet the law’s requirements, the employee must provide the employer with notice of the failure and give the employer 10 days to correct the issue prior to commencing suit. These remedies went into effect April 28.

Employees seeking redress under the PWFA can bring a charge to the Equal Employment Opportunity Commission beginning June 27 for acts occurring on or after that date. Under the PWFA, employees can receive back pay, liquidated damages, and attorneys’ fees and costs

Remote Employees

Both laws apply to remote employees. Nursing parents who are remote must be provided time to pump and must be excused from any requirements to be on video or camera during pumping times. Remote employees who are pregnant are similarly entitled to protection.

Our state has laws addressing break time and/or accommodations for pregnant workers. Do these new federal laws trump state law?
These laws set the floor, not the ceiling. States are free to adopt additional protections, and employers should be sure they comply with all state and local laws, in addition to federal law.

Didn’t the ACA already amend the FLSA to require pumping breaks back in 2010?
The 2010 law did not cover exempt employees. The PUMP Act covers both exempt and non-exempt employees.

Are there exceptions to the PUMP Act?
Employers with fewer than 50 employees are not required to abide by the act’s requirements if that would impose undue hardship by causing significant difficulty or expense in relation to the size, financial resources, nature, or structure of the business.

Airline crewmembers aren’t covered by the law. There are further exceptions for rail carrier and motorcoach employees, but the law doesn’t not go into effect for these employees until Dec. 29, 2025.

One of our employees is taking significantly longer to pump than their peers. Can we limit pumping break time?
The law doesn’t limit break time. The length and frequency of break time a nursing parent requires depends on the parent and child.

Do we have to pay for pumping breaks?
Under the law, non-exempt employees who are completely relieved from duty needn’t be paid for break time—unless state law requires pay. If a non-exempt employee chooses to use an employer-provided paid break to pump, the employee must be paid.

We don’t have a space to dedicate as a lactation room. What should we do?
Employers need not have a permanent lactation room—they just must have a space that will be available as necessary. Employers with non-traditional work environments may have to be creative in providing private space to pump. Employers should get input from employees, and may consider providing a pop-up tent or a car windshield cover for employees who don’t operate in a physical work environment.

How does the PWFA differ from the ADA?
The PWFA does not require the employee to be disabled under the Americans with Disabilities Act to qualify for a potential accommodation. Further, under the PWFA, an employee may still be “qualified” even if they are temporarily unable to perform the essential functions of the job, as long as that inability can be accommodated and there is the possibility of performing the essential functions in the future.

Does the EEOC provide guidance on how to comply with the PWFA?
Right now, the EEOC has provided limited FAQs, but the PWFA requires the EEOC to issue regulations by June 27.

What should employers consider doing to address the laws right now?
Employers should consider issuing policies addressing the PUMP Act and the PWFA, and training managers and human resources on the requirements of the law. Employers should also consider addressing the issue of a private space for pumping prior to the need arising. Under the PWFA, employers may want to consider tweaking their existing ADA process to comply with the law.

Employers should consider creating open dialogue with employees to ensure employee needs are being met and check-in on how accommodations or pumping spaces are working.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Christine Bestor Townsend is a shareholder in the Milwaukee and Chicago offices of Ogletree Deakins and is a trusted counselor and experienced litigator on a full range of labor and employment issues.

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