The Pregnant Workers Fairness Act (PWFA) and Providing Urgent Maternal Protections (PUMP) Act are newly-enacted federal laws designed to supplement already-existing federal laws applicable to pregnant workers, i.e., Title VII, the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
It is important to note that California’s own Pregnancy Disability Leave (PDL) laws and lactation accommodation provisions already set forth more stringent laws than the PWFA and the PUMP Act. Accordingly, California employers should continue to follow these state regulations, or any stricter local municipal ordinances. Employers with operations outside of California or multi-state operations should immediately review their policies and procedures to ensure they comply with both the PWFA and the PUMP Act.
Effective June 27, 2023, the PWFA requires “covered employers” to provide “reasonable accommodations” to pregnant employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” For the full bill, click here. The PWFA represents the federal government's effort to fill the gap between Title VII and the ADA to ensure that pregnant workers are afforded reasonable accommodations for physical or mental conditions related to pregnancy and childbirth.
To assist employers with PWFA compliance, the U.S. Equal Employment Opportunity Commission (EEOC) has recently issued regulations and provided FAQs on the PWFA, which can be viewed here.
Covered employers include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations (note that California’s PDL law applies to companies with five or more employees). Under the PWFA, reasonable accommodations an employer may offer include, among others, the ability to sit or drink water, receive closer parking, have flexible hours, receive appropriately-sized uniforms and safety apparel, receive additional break time to use the bathroom, eat, and/or rest, to take leave or time off to recover from childbirth, and to be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. The employer may deny such accommodations only if it would cause an undue hardship to the employer; PWFA defines an “undue hardship” as “a significant difficulty or expense for the employer.” (Note that the California PDL laws do not allow for any undue hardship exception.)
In certain circumstances, the PWFA also can temporarily excuse pregnant workers from performing the essential functions of their jobs as a reasonable accommodation if: (a) the inability to perform an essential function is temporary; (b) the essential function could be performed in the near future; and (c) the inability to perform the essential function cannot be reasonably accommodated.
As noted above, California’s PDL creates more stringent duties to accommodate pregnant employees than the federal PWFA. For example, an employer covered by the PDL must provide a leave of absence, a job transfer, or reasonable accommodation to a pregnant employee who is disabled by pregnancy, childbirth or a related medical condition, so long as the employee’s health care provider characterizes the accommodation as "medically advisable."
Effective April 28, 2023, the PUMP ACT amends the federal Fair Labor Standards Act (FLSA) and expands workplace protections for lactating workers. It requires covered employers (i.e., all employers covered by the FLSA) to allow all employees reasonable break time to express breast milk for the employee’s nursing child. Employers with fewer than 50 employees may be exempt from complying with the PUMP Act if they can establish that doing so would impose an undue hardship causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
The new law also extends the available time period for such accommodations to one year after the child’s birth (California law has no such time limitation). The employer must provide a place (other than a bathroom) to express milk, shielded from view and intrusion from coworkers and the public. Time spent to express breast milk may be unpaid unless otherwise required by federal or state law or municipal ordinance, or unless the employee is also working. Transportation workers are treated differently under the PUMP Act, with bus drivers for long-distance bus companies and some railroad workers having a three-year delay in the bill applying to them. There is also an exemption for air carriers. Before making a claim against an employer, an employee must first notify the employer that they are not in compliance and provide them with ten days to comply with the required accommodations.
As with the PWFA, California’s lactation accommodation laws (and several local municipal ordinances) contain more stringent provisions than the federal PUMP Act requirements. California Labor Code Section 1030 holds that California employers must allow employees a reasonable amount of time to express breast milk for the employee's infant child each time the employee has a need to do so. The break time shall, if possible, run concurrently with any break time already provided to the employee. The employer must provide a private room where an employee can express breast milk, and employers with fewer than 50 employees may be exempt. Unlike the PUMP Act, California’s laws do not contain an employer notification requirement before an employee brings a claim. You can view additional information on California’s lactation accommodation laws here.
As noted above, the PWFA and the PUMP Act do not create significant changes for California employers, since California's state and local laws already provide stricter pregnancy and lactation accommodations requirements. However, employers with operations outside of California or multi-state operations are cautioned to review/revise their policies and procedures and train managers to ensure compliance with both of these new federal laws.
For questions regarding accommodation for pregnant or lactating workers, or assistance with other employment law issues, contact the attorneys at LightGabler.