Employment Law Report
New Federal Protections for Employees Who are Pregnant or Nursing
By: Sharon L. Gold
Two landmark laws were passed late last year that provide protections for pregnant and nursing workers. The Pregnant Workers Fairness Act (PWFA) requires employers provide reasonable accommodations to employees for pregnancy, childbirth, or related medical conditions, unless the accommodations would cause an undue hardship. Undue hardship is defined the same as under the Americans with Disabilities Act. The Act is effective June 27, 2023. The PWFA applies to employers with 15 or more qualified employees.
Prior to the PWFA, under federal law, employees had to either have a pregnancy-related condition that rose to the level of a disability or prove that the employer provided accommodations for those who were similar in their ability or inability to work in order to prove discrimination under the Pregnancy Discrimination Act. In the last decade, many states, including Kentucky, passed laws requiring employers accommodate pregnancy-related conditions (not just those rising to the level of a disability) unless the employer could prove undue hardship.
The PWFA also provides that employees cannot be forced to take unpaid or paid leave, and that the employees may still be considered “qualified” even if they cannot perform all the essential functions of their positions, so long as the failure to be able to perform essential functions is temporary; the essential functions could be performed in the near future; and the inability to perform the essential function can be reasonably accommodated. The PWFA requires that the EEOC issue regulations within a year, including providing examples of reasonable accommodations.
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), effective December 29, 2022, amends the Fair Labor Standards Act’s requirements already in place for nursing workers in key ways: 1) it expands to exempt workers the protections provided for nonexempt workers to be able to have breaks to express breast milk and be provided a location other than a bathroom to express milk; 2) extends the protections for two years, instead of one; and 3) clarifies that for nonexempt workers, the nursing breaks may still be unpaid unless the employee performs work during the breaks or if the nursing breaks take place during normally paid breaks. Importantly, exempt workers cannot have their salary decreased for nursing breaks.
Prior to making a claim for violation against an employer under the Act, an employee must notify the employer and provide the employer ten calendar days to come into compliance. There is an exemption to the PUMP Act’s requirements for employers with less than fifty employees if the employer can prove an “undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Employers should update their policies to make sure they are in compliance with these federal protections for pregnant and nursing employees.