New Protections for Pregnant and Breastfeeding Employees

In December 2022, two new federal protections for pregnant and breastfeeding employees became law as part of the Consolidated Appropriations Act of 2023. Most K-12 schools, colleges, and universities must comply with the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which address shortcomings in federal legal job protections related to pregnancy and nursing.

Although the federal Pregnancy Discrimination Act of 1978 (PDA) prohibited most employers from discriminating on the basis of pregnancy, childbirth, or related medical conditions, it didn’t specifically require accommodations for pregnant employees. Moreover, under the Americans with Disabilities Act (ADA), pregnancy itself isn’t a disability (although employers may have to provide accommodations for certain pregnancy-related impairments, such as gestational diabetes or preeclampsia, that do qualify as disabilities). And federal wage-and-hour rules mandating breaks for nursing mothers didn’t protect many employees.

PWFA Requirements

The PWFA applies to employers with more than 15 employees and takes effect June 27, 2023. Without requiring a “disability,” the law mandates providing “reasonable accommodations” to employees and job applicants for pregnancy, childbirth, and related medical conditions unless those accommodations would create an “undue hardship” for an employer. The “reasonable accommodations” and “undue hardship” standards are borrowed from the ADA, so undue hardship means an employer must show an accommodation would create significant difficulty or expense. Employers may not require pregnant employees to take paid or unpaid leave as an accommodation if another reasonable accommodation is available.

Potential accommodations under this law could include:

• More flexible or longer work breaks
• Changed or more flexible work schedules
• Altered uniform or dress codes
• Temporary light duty or transfer to a less physically demanding position

Consistent with the ADA’s approach, under the PFWA, employers and employees must engage in an interactive process to determine appropriate accommodations. An employer doesn’t have to grant an employee’s requested accommodation if an alternative the employer prefers would be equally effective.

The Equal Employment Opportunity Commission (EEOC) will enforce the PWFA and has one year from the date of enactment to issue regulations, including examples of pregnancy-related accommodations.

PUMP Act Requirements

While the Affordable Care Act of 2010 amended the Fair Labor Standards Act (FLSA) to require break times for nonexempt employees who are nursing, it didn’t cover exempt (generally, salaried) employees. The PUMP Act explicitly extends these protections to exempt employees. For one year after a child’s birth, an employer must provide all nursing employees with:

• Reasonable break times — which vary in frequency and length, depending on individual needs — for an employee to express milk for a nursing child
• A place to express milk that isn’t a bathroom and is private and protected from intrusion by co-workers or the public

Exempt employees must receive their full regular salaries regardless of breaks, whereas breaks for nonexempt employees can be unpaid unless another law (such as a state statute or local ordinance) requires otherwise. However, nonexempt employees are entitled to pay if they’re not completely relieved of duty during a break or use an otherwise paid break to express milk.

The Department of Labor (DOL), which enforces the FLSA, states that employers with fewer than 50 employees aren’t subject to break requirements if providing them would create an undue hardship, which is determined by comparing the difficulty or cost of compliance to a particular employer’s “size, financial resources, nature, and structure.”

Except for certain remedies (such as an employee’s right to sue if they experience retaliation under the PUMP Act), which become effective April 28, 2023, the law became effective immediately on passage in December 2022.

Prepare for Compliance

To help ensure your institution complies with these laws:

• Consult with counsel. Before changing your institution’s current policies or practices, consult an experienced attorney to ensure you satisfy all applicable legal requirements. The PWFA and PUMP Act don’t excuse employers from complying with state or local laws with more generous protections for pregnant and nursing employees. For example, some such laws require employers to accommodate a nursing employee’s need to express milk for longer than a year or require providing equipment such as a refrigerator.
• Review your existing disability accommodations process. Consider your institution’s needs and experience. Depending on the circumstances, you might expand your existing process to include requests under the PWFA or create a similar, separate process for those requests. It’s wise to also involve counsel on this point.
• Train managers and supervisors. Managerial and supervisory personnel must understand the basic requirements of the new laws and their responsibilities. For example, if an employee informs a front-line manager of their pregnancy and asks for specific accommodations, the manager shouldn’t purport to grant or deny the request but instead should know where to refer the employee (such as Human Resources or another designated office) to begin the interactive process. Similarly, managers and supervisors must understand the obligation to give nursing employees appropriate spaces and break time to express milk.
• Evaluate your workspaces. Review and, if necessary, prepare to modify your workspaces to provide a compliant space for nursing employees to express milk when requested.
• Update handbooks and other documents. In consultation with counsel, update your employee handbooks and policies and procedures to reflect the new requirements. Provide copies or links to employees as soon as you make revisions.
• Publicize the new requirements. Educate your entire campus community about the new laws. Explain how employees can enforce their rights, including your specific procedures for requesting pregnancy accommodations and nursing breaks.

Watch for More Mandates

Additional requirements for most K-12 schools, colleges, and universities are on the horizon. The proposed Title IX regulations contain separate provisions (applicable to employees and students) forbidding discrimination based on pregnancy or pregnancy-related conditions and mandating various accommodations for nursing mothers.

It’s unclear when the regulations will be finalized and the exact form these protections will take. If your institution is subject to Title IX, continue to monitor developments and prepare to comply with these requirements as well as with the PWFA and PUMP Act.

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