Recent amendments to Title VII and the Fair Labor Standards Act (FLSA) impact how employers address pregnant and breastfeeding employees’ needs. Employers should reset their approaches to navigate the newly expanded protections available to pregnant workers and workers who have recently given birth.

IN DEPTH

WHAT HAS CHANGED?

The Pregnant Workers Fairness Act (PWFA) expanded Title VII’s existing protections on pregnancy discrimination. Under the PWFA, employers must now provide reasonable accommodations to pregnant workers for known limitations related to pregnancy, childbirth or related medical conditions, even where those limitations fall short of a disability under the Americans with Disabilities Act (ADA). The PWFA became effective on June 27, 2023.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) amended the FLSA to require employers to provide reasonable break time and appropriate facilities for workers to express breast milk for a nursing child for one year after birth. This amendment expanded FLSA coverage for lactation rights and added enforcement provisions to allow lawsuits for violations. PUMP became effective on December 29, 2022.

HOW DOES THE PWFA CHANGE THE STATUS QUO?

While Title VII already prohibited employers from treating pregnant employees worse than other employees, there was a gap: pregnant workers with temporary conditions (e.g., morning sickness) lacked a true ADA disability and thus a basis for insisting on reasonable accommodations. The PWFA was enacted to close this gap between the Pregnancy Discrimination Act of Title VII and the ADA.

The PWFA mandates that employers provide reasonable accommodations for the “known limitations” related to a “qualified” employee’s pregnancy, childbirth, or related physical or mental medical conditions unless the employer can show that the accommodation would impose an undue hardship. This boils down to four main considerations:

1. Who is a covered employer? The PWFA covers employers with 15 or more employees.

2. What is a known limitation? Under the PWFA, a known limitation is any physical or mental condition that the pregnant employee has “communicated to the employer,” regardless of whether the condition is a disability as defined by the ADA.

3. Who is a qualified employee? This is an employee who can perform essential job functions with or without accommodations. The PWFA states that an employee is qualified when the inability to perform essential functions “is for a temporary period,” the essential functions could be performed “in the near future” and the inability to perform essential functions can be reasonably accommodated.

4. How are “undue hardship” and “reasonable accommodation” defined? The PWFA states that these terms “shall be construed” the same as under the ADA.

HOW DOES THE PUMP ACT CHANGE THE STATUS QUO?

The PUMP Act builds on 2010 amendments to the FLSA and further expands the workplace protections available to breastfeeding employees. The PUMP Act requires employers to provide breastfeeding employees with the following:

• A reasonable amount of break time to express milk as needed for up to one year following the birth of an employee’s child; and

• Space to express milk that is shielded from view, is free from intrusion from coworkers and the public and is not a bathroom.

Employers should be familiar with these basic requirements, which arose from the 2010 FLSA amendments. The PUMP Act adds nuances, however:

• FLSA-exempt employees are now included.

• All employers are covered, but employers with fewer than 50 employees can exempt themselves with proof that providing the requirements to breastfeeding employees would impose an undue hardship on the business.

• Remote employees are entitled to lactation breaks on the same basis as if they were working onsite.

Employers do not need to pay for lactation breaks as long as the affected employees are completely relieved of their duties during the breaks. These protections also now come with enforcement mechanisms, including a private right of action for employees to sue their employer (although claims for failure to provide an appropriate space require 10 calendar days advance notice for the employer to comply).

ARE THERE SUGGESTED BEST PRACTICES GOING FORWARD?

Employers must prepare to engage in the PWFA interactive process with pregnant employees.

Employers now have a duty to accommodate that will require more creative thinking in addressing workplace needs of pregnant employees. For example, a recent ADA case addressed the use of a “morning remote and afternoon in-office schedule,” which might also work for morning sickness. Montague v. U.S. Postal Serv. (5th Cir. 2023).

Reasonable accommodations may also include appropriately sized uniforms and safety gear, preferred parking access, and exemptions from policies to allow pregnant workers more frequent bathroom breaks or access to water or food as necessary. Proposed Equal Employment Opportunity Commission regulations are currently under review at the White House and, when published, will add more suggestions.

Employers should update lactation policies in light of PUMP. A new Field Assistance Bulletin from the US Department of Labor will be helpful in assessing policies or answering questions case-by-case. This guidance stresses that a one-size-fits-all approach is unlikely to assist in compliance.

There are also updated posters to address these statutory amendments: an FLSA poster covering PUMP and a Title VII poster covering PWFA.