In late 2022, Congress passed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Both pieces of legislation provide further protections to women in the workplace. 

The Pregnant Workers Fairness Act 

The PWFA, which will be effective on June 27, 2023, applies to all employers with 15 or more employees. The PWFA will require employers to provide reasonable accommodations for “qualified employees,” namely those affected by pregnancy, childbirth or related medical conditions, who are able to perform the essential functions of their job. Per the PWFA, such accommodations may include, for example, additional break time, being excused from performing strenuous tasks, closer parking, the ability to sit or drink water, and providing appropriately sized uniforms and safety apparel. Employees who request accommodations pursuant to the PWFA may not be discriminated against for doing so and may not be forced to take leave if a reasonable accommodation can be provided by the employer. Employers must engage in an interactive process with the qualified employee to determine whether a reasonable accommodation is available. Of note, the same standard for determining whether a requested accommodation is reasonable under the Americans with Disabilities Act (ADA) will also apply to accommodations requested pursuant to the PWFA. 

PUMP for Nursing Mothers Act 

The PUMP Act amends the Fair Labor Standards Act (FLSA) and applies to most employers with fifty (50) or more employees. Under the FLSA as in effect prior to December 29, 2022, employers were required to provide nursing mothers with break periods and a private space to express breast milk; however, those requirements applied only to nonexempt employees. As of December 29, 2022, pursuant to the PUMP Act, a covered employer must now provide all nursing mothers with reasonable break time to nurse their child and/or express breast milk for a period of one year after the child’s birth. Employers subject to the PUMP Act must also maintain a nursing/lactation area that is segregated from other workspaces and not part of a bathroom. 

Employees seeking to hold employers liable for PUMP Act violations may be entitled to (depending on the violations) reinstatement, employment or promotion and/or compensatory, liquidated and/or punitive damages. Additionally, unlike other claims arising under the FLSA, an employee who wishes to bring a claim under the PUMP Act must give her employer ten (10) days to cure any failure to provide an adequate lactation area before filing a PUMP Act claim. 

Other Federal Protections for Working Mothers 

While the PWFA and the PUMP Act are the newest, and most expansive, examples of federal laws that protect working mothers and expectant mothers, these are not the first laws of their kind. 

For example, many pregnancy-related conditions (but not necessarily pregnancy itself) have previously been covered as disabilities under the ADA. Further, pregnant workers have been protected by the Pregnancy Discrimination Act of 1978. 

Similarly, the PUMP Act also has a predecessor in the Affordable Care Act (ACA). In addition to requiring individual and small employer insurance plans to cover maternity and newborn care, the ACA contains specific obligations that pertain to certain breastfeeding employees. 

Intersection with State Laws 

Approximately 30 states and municipalities have enacted laws that require employers to provide accommodations to pregnant employees. Employers covered by these state and local laws must ensure that they comply with the most strict (or employeefriendly) aspects of each applicable law.

Tips for Employers to Comply with PWFA and Pump Act Requirements

1. Double Check Your Lactation Room 

Employers should confirm that their lactation rooms are outside of the bathroom, private and free from intrusion. While not required under the PUMP Act, it is advisable to provide a room that has an outlet for pumping devices and to make a refrigerator available for breast milk storage. 

2. Conduct Audit of Pregnancy-Related Policies 

Employers should review and update their accommodation, anti-discrimination and anti-retaliation policies to ensure they are in compliance with the PWFA and the PUMP Act. 

3. Train Employees, Managers and Human Resources Personnel 

Employers should also train managers and human resources personnel to ensure they are aware of any obligations that are new 
to them under the PWFA and/or PUMP Act.

This article authored by Ellie Hemminger was recently featured in the Association of Corporate Counsel New York Chapter Spring 2023 Newsletter. Click here to read the newsletter in full.