Moms rule in Omnibus Spending Bill

Pregnancy and lactation accommodation.

Happy new year!

Two pieces of legislation included in the $1.7 trillion Fiscal Year 2023 Omnibus Spending Bill signed into law by President Biden on December 29 will enhance workplace protections for new mothers. The Pregnant Workers Fairness Act creates a federal right to reasonable accommodation for pregnancy, childbirth, and related conditions. The PUMP for Nursing Mothers Act expands existing rights to lactation accommodation.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act is something like an Americans with Disabilities Act for pregnancy, pregnancy-related conditions, and childbirth. The law will take effect in June.

The PWFA applies to applicants and employees of private sector employers of 15 or more employees, as well as certain government employees. The U.S. Equal Employment Opportunity Commission is directed to issue regulations within one year of enactment (end of 2023). Among other things, the regulations must include examples of reasonable accommodations that employers can provide.

Here are more details:

Conditions that must be accommodated. Covered employers must accommodate the “known limitation” resulting from the employee's pregnancy, childbirth, or related condition (from here on out, for brevity's sake, I'll refer to all of these conditions as "pregnancy"), even if the limitations do not meet the definition of “disability” in the ADA. The “known” part means that the employee or her representative must have communicated the need for accommodation to the employer.

“Qualified employee.” A “qualified employee” is defined as an applicant or employee who can perform the essential functions of the job, with or without a reasonable accommodation. An applicant or employee is a “qualified employee” if the inability to perform an essential function due to pregnancy is temporary, and if the essential function can be performed without accommodation in the near future and can currently be reasonably accommodated.

“Reasonable accommodation” and “undue hardship.” The PWFA adopts the definitions of “reasonable accommodation” and “undue hardship” that are in the ADA.

“Interactive process.” The legislation envisions that employers will use the ADA “interactive process” in determining appropriate reasonable accommodations for pregnant employees. (Presumably, as with the ADA, if the employer is willing to grant the employee’s requested accommodation, there will be no further need for "interaction.")

Unlawful acts. The following would violate the PWFA:

  • Refusal to make a reasonable accommodation unless doing so would be an undue hardship.
  • Requiring an employee to accept a reasonable accommodation that was not “arrived at through the interactive process.”
  • Denying employment opportunities to a “qualified employee” because of the need to make reasonable accommodations for that employee.
  • Requiring a qualified employee to take leave – including paid leave – if she can be reasonably accommodated on the job.
  • Taking adverse action against a qualified employee because she requested or used a reasonable accommodation.
  • Retaliating against an employee for opposing unlawful practices under the PWFA, or for filing an EEOC charge, testifying, or participating in an investigation of a PWFA violation.
  • Coercing, intimidating, threatening, or interfering with an individual for exercising rights under the law.

Prevailing employees are entitled to recovery of make-whole relief, compensatory and punitive damages, costs, and attorneys’ fees.

Limited employer defense. An employer who unlawfully fails to make reasonable accommodations will not be liable for compensatory or punitive damages if it shows that it made “good faith efforts, in consultation with the employee with known limitations . . . to identify and make a reasonable accommodation that would provide [the] employee with an equally effective opportunity” that would not cause undue hardship to the employer.

No preemption. State or local laws that provide more protections are not preempted by the PWFA.

Robin's two cents. For years, I’ve been advising employers to accommodate pregnancy-related limitations. The Pregnancy Discrimination Act, which amended Title VII in 1979, is an anti-discrimination law, not one that necessarily requires reasonable accommodation. However, in 2015, the U.S. Supreme Court clarified that an employer could "discriminate" in violation of the PDA by refusing to make reasonable accommodations for a pregnant employee while accommodating non-pregnant employees with similar limitations.

Even after the SCOTUS decision, there was a gap as far as pregnant employees were concerned. If the employer did not accommodate any employees with temporary conditions, then it did not have to accommodate pregnancy-related limitations under federal law because it was treating everyone the same. Meanwhile, the EEOC took a fairly aggressive position on pregnancy accommodation (although arguably staying within the bounds of the Supreme Court ruling) and pursued employers to the extent possible for failure to accommodate pregnancy. For example, if an employer offered light duty to employees with temporary work-related injuries, the EEOC might sue the employer for failing to provide light duty to similarly-limited pregnant employees.

Hence my recommendation that employers seeking to minimize their legal risks just go ahead and accommodate pregnancy.

The PWFA removes any ambiguity on this point. It definitively says that, even though most restrictions related to pregnancy, childbearing, and related conditions are only temporary, employers must provide reasonable accommodations unless doing so would be an undue hardship. Regardless of what the employers do or don't do for other temporary conditions.

(I noticed that the links to the 2015 Supreme Court decision no longer worked in either of the old articles linked above. Here's the actual decision, in case you'd like to read it.)

PUMP for Nursing Mothers Act

The omnibus legislation also included a provision that will expand the “lactation accommodation” provisions of the 2010 Nursing Mothers Act. The original Nursing Mothers Act amended the Fair Labor Standards Act to require that non-exempt employees be given unpaid break time and a sanitary, private area (not a bathroom!) to express and store breast milk during the work day. Non-exempt nursing mothers were entitled to these benefits for up to one year after the baby's birth.

The new legislation, which has the full name of Providing Urgent Maternal Protections for Nursing Mothers Act (they really worked hard to get "PUMP" in that name, didn't they?), appears to expand those rights to FLSA-exempt employees, and requires that the benefit be provided for up to two years after the mother begins nursing or gives birth. The U.S. Department of Labor has been directed to issue guidance within 60 days of enactment (end of February or first of March).

Here are some other highlights of this legislation:

Under the 2010 law, time spent expressing milk was unpaid. The 2022 law specifies that the time is normally unpaid but should be paid if the mother is "not completely relieved from duty during the entirety of such break."

As with the 2010 law, if doing so would be an undue hardship for an employer with fewer than 50 employees, the employer is not required to comply. "Undue hardship" is defined as "significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."

In most instances, before she can assert a claim, the nursing mother is required to inform the employer that it has not provided an "adequate place" and give the employer 10 calendar days to correct the situation. However, this notice requirement does not apply if the employee has already been discharged for asking for, or for opposing employer conduct related to, lactation accommodation. The notice requirement also does not apply if the employer has already said it does not intend to comply with the law.

An employee is entitled to lactation accommodation even if her baby was stillborn, or if she does not have legal custody of the baby. (According to this website, if the baby is stillborn or has died, the mother may still want to express her milk and donate it. And a mother who doesn't have custody of her baby could still be providing her milk to the baby.)

Employees of air carriers are covered, but on a more limited basis during flights.

That omnibus bill is chock full of employment-related laws. In case you missed it, Chris Deubert posted yesterday about another employment-related provision pertaining to retirement accounts.

I wonder what else we'll find in there!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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