The Consolidated Appropriations Act, signed into law by President Biden on December 29, 2022, enacted two laws providing protections to pregnant women and nursing mothers in the workplace: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

Pregnant Workers Fairness Act

Effective June 27, 2023, the PWFA applies to employers nationwide with at least 15 employees and to “qualified employees,” meaning an employee or job applicant who can perform the essential functions of the job with or without reasonable accommodation.

The PWFA requires covered employers to provide a reasonable accommodation to employees affected by a physical or mental condition due to pregnancy, childbirth, or related medical conditions unless the employer can show that doing so would impose an undue hardship. Historically, courts have held that pregnancy alone was insufficient for coverage as a “disabled employee” under the Americans with Disabilities Act (ADA). Now, the PWFA imposes the same ADA obligations on employers to engage in an interactive process to determine a reasonable accommodation with regard to pregnancy, childbirth, or related conditions.

The PWFA will be enforced by the US Equal Employment Opportunity Commission (EEOC) and the US Attorney General’s Office as it pertains to private sector employees. The law directs the EEOC to issue regulations on the requirements, including examples of reasonable accommodations, within one year from enactment.

In addition to requiring employers to make accommodations, the law also bars employers from:

• Denying employment opportunities to women based on their need for reasonable accommodations related to pregnancy, childbirth, or related medical conditions.

• Forcing a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.

• Requiring such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or taking adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

• Taking adverse employment action against a qualified employee who requests or uses a reasonable accommodation needed for pregnancy, childbirth, or related medical conditions.

Look to Louisiana Pregnancy Accommodations Law for Guidance

While employers await the EEOC’s regulations and examples of accommodation for the PWFA, Louisiana employers may look to the examples already provided in Louisiana’s law applicable to employers with more than 25 employees, effective August 1, 2021.

Covered Louisiana employers already have a general duty to reasonably accommodate an employee’s physical limitations caused by her pregnancy, unless the employer can demonstrate the accommodation would pose an undue hardship on the operation of its business.

Louisiana’s law provides examples of compliant “reasonable accommodations” such as:

• Making existing facilities readily accessible to and usable by an applicant or employee with covered limitations.

• Providing scheduled and more frequent or longer compensated break periods.

• Providing more frequent bathroom breaks.

• Providing a private place, other than a bathroom stall, for the purpose of expressing breast milk.

• Modifying food or drink policy.

• Providing seating or allowing the employee to sit more frequently if the job requires the employee to stand.

• Providing assistance with manual labor and limits on lifting.

• Transferring the employee temporarily to a less strenuous or hazardous vacant position, if qualified.

• Providing job restructuring or light duty, if available.

• Acquiring or modifying equipment or devices necessary for performing essential job functions.

• Modifying work schedules.

Providing Urgent Maternal Protections for Nursing Mothers Act

Prior to the recent enactment of the PUMP Act, the Fair Labor Standards Act (FLSA) incorporated requirements for break time and a space shielded from view for nursing employees to express breast milk during the workday.

The PUMP Act, which took effect on December 29, 2022, strengthens prior protections by expanding coverage to all employees, not just hourly workers. The law requires covered employers to provide a reasonable break time for nursing employees to express breast milk for a nursing child each time the employee has a need to express the milk. The law also requires the employer to provide a place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public to be used to express breast milk. These requirements exist during the first year following the birth of a child.

An employer is not required to pay an employee for the nursing break time, unless required by other applicable law or if the employee is not completely relieved from duty during the nursing break. If the employee continues to perform work while expressing breast milk, the employer must pay for the time and count the “break” time as “hours worked.” 

In general, the PUMP Act applies to all employers, but there is the possibility for a small-business exemption. An employer that has fewer than 50 employees need not follow these provisions if it can prove that the requirements would impose 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. NOTE: Some states, including Louisiana, have laws requiring employers with fewer than 50 employees to provide private spaces for the expression of breast milk, and those state laws must be followed regardless of the small-business exemption to the PUMP Act.

The PUMP Act also contains exemptions for crew employees of air carriers and limitations on the scope of coverage of rail carriers with respect to train crew employees.

Although the expanded access requirements under the PUMP Act to provide nursing break time and protected space for expressing breast milk are effective immediately, the provisions allowing employees to seek legal relief and remedies under the FLSA for violations do not take effect until Friday, April 28, 2023.

Employer action items for compliance include the following:

• Add pregnancy, childbirth, and related medical conditions to any ADA reasonable accommodation policies you have.

• Train managers and supervisors that pregnancy, childbirth, and related medical conditions must be accommodated using an interactive process in order to avoid statements or actions to the contrary. The words “we only accommodate workplace injuries” should never be spoken.

• Consider that what may be considered a “reasonable” accommodation for pregnancy, childbirth, and related medical conditions may be different and even more onerous than what is mandated under the ADA due to the more temporary nature of the need.

• Take note that the PWFA requires accommodations for both physical and mental impairments related to pregnancy, childbirth, and related conditions. Be mindful of employee-provided information regarding postpartum depression, anxiety, or other related mental conditions that may require accommodation.

• Identify spaces in your workplace available to working mothers to express breast milk.

• Train managers and supervisors that break time to express breast milk as many times a day as needed is a protected right and that disparaging comments should not be tolerated.

• Train managers, supervisors, and the payroll department that break time to express breast milk may be compensable work time if the employee is doing work, including taking work-related calls, responding to emails, etc.

• Check the law for each state where employees are located to determine if the state provides more generous protections, and follow that law. The PWFA and the PUMP Act do not preempt more generous state and local laws.