When President Joe Biden signed the Consolidated Appropriations Act, 2023 in December 2022, pregnant workers and nursing mothers gained expanded protections, explains Davenport Evans Employment Lawyer, Brooke Schmidt.

Pregnant Workers Fairness Act (PWFA)

 Employers must be aware of the forthcoming PWFA, which goes into effect on June 27, 2023. The PWFA requires employers, with fifteen or more employees, to provide reasonable accommodations to workers with known limitations “related to pregnancy, childbirth, or related conditions, unless the accommodation would cause the employer an ‘undue hardship.’ ” The Equal Employment Opportunity Commission (EEOC) is tasked with issuing regulations for PWFA compliance. Although the regulations have not been released for the required comment period, the EEOC wrote a “What You Should Know,” which may guide employers regarding compliance.

Examples of reasonable accommodations may include the ability for a pregnant worker to receive a closer parking space, flexibility within hours, additional break time to use the restroom, to eat, or to rest, or be excused from strenuous activities. The EEOC notes the reasonable accommodations must be provided unless an undue hardship is created, which is noted as a “significant difficulty or expense for the employer.”

The PWFA prohibits employers from requiring the employee to accept an accommodation without discussion between the parties and prohibits requiring the employee to take leave if a different reasonable accommodation is available. The EEOC will start accepting charges under the PWFA on June 27, 2023, but the alleged situation complained about must have occurred on June 27, 2023, or later. Even with these new requirements under the PWFA, employers should keep in mind an employee’s impairments related to the employee’s pregnancy could also be considered a disability under the Americans with Disabilities Act.

Further, even if the PWFA does not apply to an employer, states may expand state law. For example, Minnesota recently expanded its own laws surrounding pregnancy accommodations/rights of nursing mothers. The Minnesota law, which takes effect on July 1, 2023, applies to employers with one or more employees. The law requires employers to provide reasonable accommodations, unless the employer can demonstrate the accommodation imposes an undue hardship on the operation of the business, to employees experiencing health conditions related to pregnancy or childbirth.

Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act)

Currently in effect, the PUMP Act, which amended the Fair Labor Standards Act (FLSA), expanded the protections surrounding lactation in the workplace to exempt employees. Although in practice, many employers were offering these protections to exempt employees, the PUMP Act officially expanded the protections to around 9 million more employees.

Under the PUMP Act, employers must provide nursing employees reasonable break time each time the employee has the need to pump breast milk at work. The pumping mother can take advantage of this break time for a year after the birth of the child. Further, the need to express breast milk will depend on the employee’s individual circumstances and will likely look different amongst employees.

The PUMP Act continues to address issues surrounding privacy, space requirements, and compensation. Small employers, with fewer than 50 employees, may be exempt from compliance, if the small employer can show compliance creates an undue hardship. It is the burden of the small employer to demonstrate how the employee’s specific needs reflect an undue hardship “due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.” The United States Department of Labor, which enforces the FLSA, recently issued helpful guidance regarding the PUMP Act and made an updated compliance poster available to employers.

Davenport Evans stands ready to help our employment law clients with questions regarding these new laws and compliance. Contact a lawyer at [email protected], 605-336-2880, or find a specific lawyer here.