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Congress recently passed two pregnancy-related acts, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act and the Pregnant Workers Fairness Act (PWFA). While these new laws include some overlap with the requirements of already-existing federal and state laws, they also include additional obligations that employers must not only know, but be prepared to act on. This article discusses the need-to-know information for compliance with both the PUMP Act and the PWFA.

PUMP ACT

The PUMP Act went into effect on December 29, 2022, expanding existing protections under the Fair Labor Standards Act (FLSA) for nursing mothers in the workforce.[1] For instance, the right to reasonable break time to pump at work was previously limited under federal law to nonexempt workers, but the PUMP Act expanded those protections to include exempt workers—including salaried workers with duties that do not ordinarily entitle them to overtime pay, such as nurses and teachers.

Because the PUMP Act is an expansion of already-existing protections, it is important for employers to understand two things: 1) whether the FLSA (and therefore the PUMP Act) covers the employer and its employees; and 2) if so, what additional accommodations must the employer provide to its employees who are nursing.

As of April 28, 2023, an employer who violates an employee’s right to reasonable break time and space to pump breast milk could be liable for appropriate legal or equitable remedies under the Act.

Does this Apply to Me?

An employer must comply with the FLSA if it employs at least two employees, and is:

1. Engaged in interstate commerce and does at least $500,000 a year in business, or
2. Engaged in the operation of a hospital, residential medical or nursing care facility, school, preschool, or
3. Engaged in the activity of a public agency (including state and local governments).[2]

Even if an employer does not meet the $500,000 threshold, the FLSA still covers the individual employees who engage in interstate commerce or who are directly engaged in producing goods in interstate commerce. Interstate commerce includes making out-of-state phone calls, receiving or sending interstate mail or electronic communications, ordering or receiving goods from out-of-state suppliers, handling credit card transactions, and performing accounting or bookkeeping for such activities.

All FLSA-covered employers are subject to the PUMP Act’s break time requirement, unless they have fewer than 50 employees and can demonstrate an Undue Hardship. This Undue Hardship Exemption allows employers (including those in the public sector) of less than 50 employees, to be excused from compliance with the PUMP Act, if the employer can show that providing those protections would cause undue hardship. In other words the employer would need to be able to prove, with support, that compliance imposes a significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business and/or operations.[3]

The PUMP Act Applies to Me, So What?

The PUMP Act requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child’s birth, each time the employee has need to express the milk. Employees are entitled to a place to pump at work in a space that is (1) shielded from view, (2) free from intrusion from coworkers and the public, and (3) is not a bathroom.[4]

The PUMP Act’s specific requirements can be broken down as follows:

Reasonable Break Time Requirement:

• Employers must completely relieve the employee from their duties, or the time spent during the break must be counted as hours worked for the purposes of minimum wage and overtime requirements.

• Employers that already provide employees with paid break time must compensate an employee who chooses to use that time to pump in the same way that other employees are compensated for paid breaks.

Example (as recently discussed in a presentation by a representative from the U.S. Department of Labor)[5]:

Jasmine, an office manager of an accounting firm, takes three 20-minute pump breaks each day when she first returns to work after the birth of her child. If, during those 20-minute breaks, Jasmine is not completely relieved of her duties and must send out work-related emails, she must be fully compensated for those 20 minutes. Additionally, if Jasmine’s employer provides paid break times to all employees and Jasmine chooses to use two of those breaks to pump breast milk, Jasmine must be compensated for those two breaks in the same way that other employees are for similar types of breaks. If Jasmine wishes to take her third 20-minute break at lunch time, and the employer only provides unpaid lunch breaks, Jasmine would not be entitled to compensation during that break, whether she chooses to eat during it or pump breast milk (but only as long as she is also completely relieved of her duties).

Remember: the breaktime must be given each time the employee has the need to pump, and the frequency of this need will likely vary with each individual employee. There is no maximum number of required breaks, so employees are entitled to take as many as are necessary.

Space Requirement:

Adequate space for nursing employees is guided by two standards:

1. The space must be shielded from the view of others and free from intrusion from coworkers and the public.

Example: An employer might display a sign on the door when the room is in use, turn off any surveillance or monitoring equipment in the space, and/or provide a locking mechanism for the door.

2. The space must be functional for pumping breast milk.

Example: An employer should provide a place for the nursing employee to sit, a flat surface, a sink, and a place to safely store breast milk.

Please note that the above examples are not per se requirements under the Act but are used as specific illustrations by the U.S. Department of Labor of the kinds of specifications that meet the “functional” requirement for the breast pumping space.

Remember, the space cannot be a bathroom. Employers may also want to consider whether there will be multiple employees who will need the space at the same time.

What Happens if I Don’t Comply?

Employees may take legal action against their employer if they are denied breaks, do not have a qualifying space for expressing breast milk, or are not paid for the breaks as required by the PUMP Act. This may be either a private right of action against an employer or a complaint with the U.S. Department of Labor’s Wage and Hour Division.

Before that, however, the employee must notify the employer of the alleged failure to provide a private area to pump. The employer then has 10 days to remedy the situation.[6]

What if my State or Local Government has Stricter Regulations?

The PUMP Act’s protections do not preempt stricter protections imposed by state laws or municipal ordinances. This means that the local government or state may require that an employer provide more protections to nursing employees than what the PUMP Act requires. For example, some states (though not currently the State of Michigan) require all lactation breaks to be paid. It is of paramount importance to be aware of any additional protections at the state and local levels.

PREGNANT WORKERS FAIRNESS ACT (PWFA)

When the PUMP Act was enacted on December 29, 2022, Congress also passed the Pregnant Workers Fairness Act (PWFA). The PWFA goes into effect on June 27, 2023. This means that employers should take any necessary steps as soon as possible to ensure compliance with the PWFA’s somewhat complex provisions. Below, we provide an outline of what is required of employers under the PWFA.

What is the PWFA?

Pregnancy and its various symptoms and complications can pose physical limitations on individuals in the workplace, before and after childbirth. The PWFA fills a gap in existing law that, as of June 27, 2023, will require employers to make reasonable accommodations for qualified employees who are faced with pregnancy-related limitations. These accommodations will come in different forms, but the legislation’s overall goal is for the employer to mitigate the amount of interference an employee’s pregnancy-related limitation imposes so that the employee can adequately fulfill their job duties. 

Both the Americans with Disabilities Act of 1990 (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) already protect employees from discrimination based on pregnancy and pregnancy-related disabilities. The ADA currently requires employers to provide reasonable accommodations to employees with certain conditions related to pregnancy that qualify as a disability under the ADA. Specifically, the ADA entitles a qualified individual to a reasonable accommodation if he or she has a physical or mental impairment that substantially limits a major life activity/major bodily function.[7] Many common pregnancy-related conditions do not rise to the level of disability, and therefore are not covered. Additionally, the Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.[8]

The PWFA applies only to accommodations, while the above-mentioned preexisting laws make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. The PWFA provides pregnant employees with additional workplace protections on top of the already existing protections in the ADA and the PDA. More specifically, the PWFA entitles individuals to a reasonable accommodation if that employee has a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer an “undue hardship.”[9]

Does the PWFA Apply to Me?

The PWFA’s protections apply to all employers with at least 15 employees, whether the employer is in the public or private sector.

The undue hardship exception allows an employer to avoid the obligation to provide an otherwise required reasonable accommodation if the employer can show an undue hardship on its business or operations. This requires a display of significant difficulty or expense for the employer and is designed as a difficult threshold to achieve.

For example, if an employer in the construction industry (or other similar industry) has an employee requesting an accommodation that would result in the decrease of workplace safety, then an undue hardship may exist. Keep in mind that undue hardship is determined on a case-by-case basis and is very fact specific.

The PWFA Applies to Me, So What?

The PWFA protects qualified individuals with known limitations related to pregnancy, childbirth or related medical conditions.[10]

Employee Qualification

The PWFA requires an employee to be qualified to receive accommodation. A qualified employee is one who, with or without reasonable accommodation, can perform the essential functions of his or her job. Employees are still considered qualified if their inability to perform an essential job function is for a temporary period, the essential job function could be performed in the near future, or the inability to perform an essential job function can be reasonably accommodated.[11] This means that an employer may temporarily have to eliminate an essential job function for a qualified individual.

Limitations Related to Pregnancy, Childbirth, or Related Medical Conditions

Under the PWFA, pregnant employees are entitled to a reasonable accommodation if the employee has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, even where those conditions do not rise to the level of a “disability,” as defined under the ADA. While direct guidance as to specific pregnancy or childbirth-related conditions has not yet been provided, it is expected that employers will likely need to accommodate common pregnancy-related conditions, such as morning sickness, swelling, dizziness, fatigue, physical injuries from childbirth, etc.  

Known Limitation

Under the PWFA, a known limitation is a physical or mental condition relating to or arising from pregnancy, childbirth or related medical conditions that has been communicated to the employer. The known limitation can be provided by the employee, or the employee’s representative, such as a family member or doctor.

Note that employers will not always receive an express statement that the employee has a pregnancy-related limitation. In other words, there are no magic words to look for when determining whether a reasonable accommodation is required. Simply put, an employee must identify, at least in broad strokes, the limitations the mental or physical condition imposes on the employee.

Reasonable Accommodations

If an employee is qualified and asks for or otherwise clearly indicates a need for an accommodation, then the employer has the obligation to make a good faith effort to identify and make a reasonable accommodation that would provide the requesting employee with an equally effective opportunity in the workplace. The PWFA itself does not specify the types of reasonable accommodations that may be required. Instead, the act directs the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations to “carry out” its provisions that include “examples of reasonable accommodations.” Those regulations will be issued sometime within the next year. This means that employers will be required to comply with the PWFA well before the regulations are actually in existence.

The EEOC has highlighted some examples of potential accommodations from the House Committee on Education and Labor Report on the PWFA, including :

• ability to sit
• ability to drink water
• access to closer parking
• flexibility in work hours
• provision of “appropriately sized uniforms and safety apparel”
• additional break time allowances for bathroom use, eating, or resting
• use of leave to recover from childbirth
• excusal from “strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy”

Best Practice: Interactive Process

When it comes to employees requesting reasonable accommodations, it is always best practice to engage in the “interactive process.” The interactive process will typically involve analyzing the particular job involved, determining its purpose and essential functions, and consulting with the employee to ascertain the employee’s precise job-related limitations and how those limitations could be overcome with a reasonable accommodation. This process aims to reach a workable solution that meets the needs of business operations and the employee.

Under the PWFA, it is a stand-alone statutory violation to require an employee to accept an accommodation unless it was arrived at through the interactive process. While the PWFA does not explicitly require employers to engage in the interactive process, it is recommended that employers engage in good-faith dialogue with employees to determine temporary reasonable accommodation(s) that will protect the employee’s health while ensuring the employee remains productive. Additionally, the interactive process eliminates the burden of having an employer find the proper accommodation through a trial by error process. By engaging in this process, an employer can quickly identify the limitation and formulate more individually tailored accommodations. 

What is Prohibited Under the PWFA?

• Denying a job or other employment opportunities to a qualified employee or applicant based on the individual’s need for reasonable accommodation. For example, an employer cannot deny an employee a promotion at work that the employee is otherwise qualified for on the basis that the employee needs or would need to be provided with reasonable accommodation related to pregnancy or childbirth.
• Requiring a qualified employee to take leave (paid or unpaid) if another reasonable accommodation can meet the employee’s needs. For example, if an employee indicates to her employer that she needs an accommodation in the form of more bathroom breaks, the employer cannot force her to take leave when it could simply allow her to take more frequent bathroom breaks.
• Retaliating against a qualified employee in the terms/conditions/privileges of employment because the employee requested or received reasonable accommodation. For example, it would be considered retaliation under the PWFA if an employee requested she be given a closer parking spot to accommodate lower back pain caused by her pregnancy, and her employer chose to cut her hours so that she would not need the parking space.
• Requiring an employee to accept an accommodation without a discussion about the accommodation between the employee and the employer – an interactive process should be used to determine a reasonable accommodation.

What Steps Can I Take to Ensure Compliance?

Train Your Management/HR Team – To best prepare for the PWFA’S effective date of June 27, consider some form of training for those supervisors or managers who will have a role in handling PWFA-related reasonable accommodation requests. This training might consist of guidance on the various ways employees can put the employer on notice of the need for an accommodation, how to properly engage with an employee during the interactive process, and the importance of consistent documentation.

Prepare for Requests­ – Even before any requests are made, employers can begin to analyze what accommodations they could potentially provide to pregnant employees for known issues. For example, what might you do if an employee requests to come into work later due to increased morning sickness in the early hours of the day? Do you have closer parking available if requested? Do any of your employees currently have job duties that involve strenuous activities or activities that involve exposure to elements or compounds not safe for pregnancy? Do you have a system in place that can be modified to support employees’ requests under this Act (such as forms, known decision-making processes, etc.)

Check your Local Ordinances, State, and Federal Laws – Remember that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. As of the date of this article, the state of Michigan does not provide employees with additional protections on top of the protections provided on the federal level.

Need Help?

Compliance with these two federal laws may be challenging and certainly requires consideration and action in the near future. Our labor and employment team is ready to assist with your questions or concerns about compliance!  

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[1] Fair Labor Standards Act of 1938, 29 U.S.C.S. Sec. 207(r)(1)(2).

[2] 29 CFR § 1620.7.

[3] 29 U.S.C.S. Sec. 207(r)(1)(2).

[4] In addition to the Undue Hardship Exemption, there are narrow exemptions for certain positions within travel-related industries, such as air carriers and motorcoach service operators.

[5] Presentation: PUMP for Nursing Mothers Act (PUMP Act), Kimberly McGahey, Community Outreach & Resource Planning Specialist, U.S. Department of Labor, May 24, 2023.

[6] The notification period is waived if the complaining individual’s employment has been terminated for making the request or opposing an employer’s refusal to provide a place to express milk under the law or if the employer indicated it will not provide a private place for the employee to do so.

[7] Americans with Disabilities Act of 1990, 42 U.S.C.S. Sec. 12112(a)-(b)(5)(A).

[8] Pregnancy Discrimination Act of 1978, 42 U.S.C. Sec. 2000e(k).

[9] H.R. 1065-117^th Congress (2021-2022): Pregnant Workers Fairness Act, H.R.1065, 117^TH Cong. (2021). https://www.congress.gov/bill/117th-congress/house-bill/1065/text.

[10] Consolidated Appropriations Act, 2023, H.R. 2617, 117^TH Cong. (2022)

[11] What You Should Know About the Pregnant Workers Fairness Act

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.