Two federal laws enacted this year afford greater employment protections for employees who are pregnant or nursing.
The Pregnant Workers Fairness Act (PWFA)
The PWFA became effective June 27, 2023, and requires most employers to provide “reasonable accommodations” for “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee,[1]” unless the employer can demonstrate that the provision of such accommodations would impose an “undue hardship on the operation of the [employer’s] business”. “Reasonable accommodation” and “undue hardship” have the same meanings as they have in the Americans with Disability Act (“ADA”).
Additionally, under the PWFA an employer cannot:
· Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation “other than any reasonable accommodation arrived at through the interactive process” described in the ADA regulations;
· Deny employment opportunities to a qualified employee if the denial is based on the need of the employer to make reasonable accommodations for the “known limitations”[2] related to the employee’s pregnancy, childbirth, or related medical conditions;
· Require a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided for the known limitations related to the employee’s pregnancy, childbirth, or related medical conditions; or
· Take adverse action against a qualified employee because the employee requested or used a reasonable accommodation for the known limitations of the employee related to pregnancy, childbirth, or related medical conditions.
The Act also includes provisions prohibiting acts of coercion (intimidation, threats or interference) or retaliation against any employee who opposes any unlawful act or practice under the Act, or who exercises any rights under the Act.
An employer’s violation of any of the above requirements or prohibitions is deemed to be an “unlawful employment practice” for which an employer can be subject to damages under Title VII of the Civil Rights Act. Additionally, employees who establish that they have been treated in a discriminatory manner under the PWFA may be awarded backpay, compensatory and punitive damages, and attorney fees.
The PWFA requires the EEOC to issue regulations to carry out the purposes of the Act within one year of its enactment and requires such regulations to include “examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.” In the meantime, the EEOC has already issued some informal guidance for employers and responded to some frequently asked questions concerning the Act, available at https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The other new federal law, the “PUMP Act,” became effective April 28, 2023, and amended the Fair Labor Standards Act (FLSA) to expand the scope of employee access to break time and space for breastfeeding in the workplace.
The Act mandates that an employer provide:
· A “reasonable break time” (left undefined in the Act) for an employee to
express breast milk for the employee’s nursing child for 1 year after the child’s
birth each time the employee has need to express the milk; and
· 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.
Employers that employ less than 50 employees are not subject to the above requirements if such 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.”
An employer is not required to compensate an employee receiving reasonable break time for any time spent during the workday for the above breastfeeding purposes unless (i) compensation for such time is otherwise required by Federal or State law or municipal ordinance, or (ii) the employee is not completely relieved from duty during the entirety of the breaktime (in which case the break time must be treated as “hours worked” by the employer).
An employee can only sue an employer under the Act if (i) the employee has notified the employer of the employer’s failure to provide the place for breastfeeding required under the Act, and the employer has been provided 10 days after the notification to comply with the breastfeeding accommodation requirement of the Act; or (ii) the employee has been discharged for making a request for the breastfeeding breaktime or place, or has opposed any employer conduct related to the Act; or (iii) the employer has indicated that the employer has no intention of providing the breastfeeding place.
Remedies available to employees treated in a discriminatory manner in violation of the PUMP Act may include lost wages, liquidated and compensatory damages, reemployment, reinstatement, promotion, and even punitive damages where appropriate.
The U.S. Department of Labor (DOL) has provided helpful information about the Act, including “Resources for Workers, Employers and Advocates,” “General Guidance,” and a webinar series on the PUMP Act, at dol.gov/agencies/whd/pump-at-work, as well as the DOL’s answers to FAQs at dol.gov/agencies/whd/nursing-mothers/faq.
Relation to Other Federal and State Laws
These new federal laws supplement protections afforded to pregnant and nursing workers under other federal laws, such as the Pregnancy Discrimination Act (PDA), the ADA and the Family and Medical Leave Act (FMLA), and state laws.
State laws that provide protections to employees that are equal or greater than the new federal laws are not preempted by the new federal laws. Such state laws include but are not limited to Maine’s “Nursing Mothers in the Workplace” statute (26 M.R.S.A. §604) and Section 4572-A of the Maine Human Rights Act, which prohibits “Unlawful Employment Discrimination on the Basis of Sex.”
* * *
We hope you find the above summaries and information helpful. If we can be assistance in reviewing and updating your existing employment policies—or in preparing new policies—pertaining to pregnant and nursing employees to ensure that they comply with these new federal laws and align with other applicable federal and state laws pertaining to such employees, please contact Melissa R. O’Dea, Esq. (modea@kozakgayer.com), or Taylor D. Fawns, Esq. (tfawns@kozakgayer.com), or call (207) 621-4390 to speak with one of our attorneys.
[1] A “qualified employee” is an “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.” An employee or applicant is also considered “qualified” if (i) their inability to perform an essential function is temporary, (ii) the essential function could be performed in the near future, and (iii) the inability to perform the essential function can be reasonably accommodated.
[2] A “known limitation” means a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability [under the ADA].” Note that the condition giving rise to the limitation must be communicated by the employee (or an employee’s representative) to the employer.