On December 29th, 2022, President Joseph R. Biden signed a $1.7 trillion omnibus spending bill that included two pieces of legislation expanding pregnancy accommodations and protecting nursing mothers in the workplace. The two acts, the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) create new obligations for certain employers in 2023. Together, the two acts follow the lead of state and local governments that have passed similar laws. Pregnancy discrimination in the workplace can lead to costly litigation and hefty penalties. In December 2022, a company paid $8 million for pregnancy and disability discrimination claims after failing to provide pregnancy accommodations.
Pregnancy Accommodations Under Existing Law
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination on the basis of sex or gender. Title VII’s definition of this protected class expands to include sexual orientation, gender identity, and pregnancy-related conditions. The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII and prohibits pregnancy discrimination in employment and harassment based on a pregnancy-related condition. Under the PDA, employees temporarily disabled due to pregnancy may take disability leave if the employer normally allows it in other situations. Finally, federal wage and hour law protects nursing mothers’ rights to lactation breaks. This refers to break time for the purpose of expressing milk in the workplace.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) mirrors the Americans with Disabilities Act (ADA) and extends the same protections to pregnant workers. Like the ADA, the PWFA applies to employers with 15 or more employees on payroll. In brief, the PWFA requires covered employers to provide reasonable pregnancy accommodations to eligible employees unless it imposes an undue hardship on the business. Additionally, covered employers may not:
- require an eligible employee to take paid or unpaid leave if there is another reasonable pregnancy accommodation available;
- retaliate, coerce, intimidate, or take any adverse employment action against an eligible employee who requests a pregnancy accommodation; or
- deny any employment opportunities to an eligible employee based on their need for pregnancy-related reasonable accommodations.
While pregnancy accommodations have been available to eligible employees under the ADA in the past, such protections have been applied inconsistently. Previously, the U.S. Supreme Court’s decision in Young v. UPS required pregnant workers seeking reasonable accommodations to identify similar accommodations granted to similarly-situated employees in order to assert an actionable claim for denied pregnancy accommodations. The PWFA now removes that requirement. Remedies under the PWFA are the same as provided under Title VII. Meanwhile, the Equal Employment Opportunity Commission (EEOC) will promulgate regulations within two years of the date the law is enacted to implement the law and begin enforcement.
The PUMP Act
Similarly, the PUMP Act expands protections for nursing mothers to express milk in the workplace. The PUMP Act builds on a 2010 amendment to the Fair Labor Standards Act (FLSA) that required covered employers to provide non-exempt employees with reasonable lactation breaks and a private, non-restroom location to express milk for one year following the birth of a child. The PUMP Act now extends these protections to exempt workers. This includes salaried employees at businesses with 50 or more employees on payroll. Remedies under the PUMP Act are the same as under other provisions of the FLSA. However, before an eligible employee can begin an action for an employer’s failure to provide lactation breaks or a suitable location to express milk, they must notify their employer and allow them ten days to remedy the situation. This requirement is waived if the employer has retaliated against the eligible employee. Enforcement of the PUMP Act is effective 120 days following its enactment.