The Federal Government is implementing additional protections for pregnant workers through the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP For Nursing Mothers Act”). This is what employers need to know.
PREGNANT WORKERS FAIRNESS ACT
The PWFA, which went into effect on June 27, 2023, applies to all employers with at least 15 employees, including any private or public sector employers. The PWFA requires that employers provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Undue hardship is defined as “causing significant difficulty or expense.”
Employers that are informed of the need for an accommodation under the PWFA must still engage in the interactive process with the employee to determine what accommodations, if any, the Company can provide to the employee.
Importantly, the PWFA does not replace federal, state, or local laws that are more protective than the PWFA, which means that California employers will still need to adhere to state accommodation requirements for pregnant workers.
The PWFA applies only to accommodation requests and is silent as to claims of discrimination or retaliation. With that said, an employee still has avenues to sue an employer for retaliation or discrimination through other statutes such as the Americans With Disabilities Act or Title VII.
Ultimately, employers who are based in California who adhere to all relevant California laws will be in compliance with this statute. However, employers with 15 or more employees, and who have employees outside of California, should ensure that policies that apply to those non-California employees are compliant with the PWFA.
PROVIDING URGENT MATERNAL PROTECTIONS FOR NURSING MOTHERS ACT
The PUMP for Nursing Mothers Act which went into effect in January of 2023, provides additional protections under the Fair Labor Standards Act (“FLSA”) for nursing employees. An employer is covered by the FLSA, and therefore must adhere to the PUMP for Nursing Mothers Act, if their gross volume of sales made or business done is greater than $500,000, or who have workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person. However, if the FLSA does not apply to an employee (such as when the FLSA is preempted by another federal statute) then the PUMP for Nursing Mothers Act would also not apply.
Employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Under the PUMP for Nursing Mothers Act, most employees have the right to take reasonable break time to express breast milk for their nursing child. For one year after the child’s birth, covered employees may take reasonable break time “each time such employee has need to express the milk.” An employer may not deny a covered employee a needed break to pump.
Employees covered by this Act must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Under the FLSA, a bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk. A space temporarily created or converted into a space for expressing breast milk or made available when needed by the nursing employee is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public. Employees using break time at work to express milk must either be completely relieved from duty or must be paid for that break time.
As this provision falls under the FLSA and as the FLSA has anti-retaliation provisions, an employer may be sued by the employee if the employer retaliates against employee for performing any action covered by this Act.
Ultimately, if an employer adheres to all relevant California laws relating to pregnancy, they are already in compliance with the federal statute. However, employers who have employees based outside of California should ensure that they adhere to this statute.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Ferber Law is available to help answer questions relating to these statutes.