On December 22, 2022, President Biden signed the 2023 federal Omnibus spending bill into law. Nestled in the law were two provisions extending workplace protections for pregnant and nursing workers. These provisions were the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).
Pregnancy Workers Fairness Act (“PWFA”)
Although the PWFA is modeled after the Americans with Disabilities Act (“ADA”), the PWFA amends Title VII of the Civil Rights Act, the federal law prohibiting pregnancy discrimination, and requires employers to make reasonable accommodations for employees affected by pregnancy or childbirth unless the requested accommodations would impose an undue hardship on the employer. The PWFA also extends protections to public sector employees covered under the Congressional Accountability Act, Title 3 United States Code, and the Government Employee Rights Act of 1991. Eleventh Amendment Immunity is expressly waived, meaning an employee can sue a state employer for violations of the PWFA.
WHO IS COVERED?
A covered employee is a pregnant employee or an employee recovering from childbirth that may need a reasonable accommodation to perform the essential functions of their job due to a pregnancy related condition or a condition following the birth of a child. The definition of employee also includes applicants.
WHAT CONDITIONS ARE COVERED?
The PWFA extends to physical and/or mental conditions or limitations related to childbirth.
DO I HAVE TO LET MY EMPLOYER KNOW ABOUT MY CONDITION?
A condition or limitation affecting a pregnant worker or applicant must be communicated to the employer. Such communication can be made via a representative like a lawyer.
WHAT ARE MY EMPLOYER’S OBLIGATIONS UNDER THE PWFA?
Employers must engage in a good faith interactive process to determine accommodations under the law and an employee cannot be forced to accept an accommodation that has not been offered as part of a mutual discussion or be forced to take leave. Like the ADA, employees seeking reasonable accommodation under the PWFA would still be required to perform the essential functions of their job with or without reasonable accommodation.
WHAT IF MY EMPLOYER RETALIATES AGAINST ME OR COERCES ME TO ACCEPT A PROPOSED ACCOMMODATION?
Retaliation and coercion are prohibited under the PWFA.
WHAT IF MY EMPLOYER VIOLATES THE PWFA?
For employees covered by Title VII, the same conditions precedent is required. The filing of a charge of discrimination with the U.S. Equal Employment Opportunity Commission is required in most cases, which means an employee would likely have to file an administrative complaint with the EEOC within 180-300 days of the adverse action depending on if their state has a fair employment practices agency. (Employees in Florida have 300 days of the date of when they knew or should have known of the discrimination to file with the EEOC).
WHAT DAMAGES ARE AVAILABLE UNDER THE PWFA?
The same remedies available under Title VII will be available to aggrieved employees under the PWFA including back pay, compensatory damages, punitive damages (in some cases), and attorneys’ fees and costs. However, the law only applies to employers with 15 or more employees for at least 20 weeks in the current or preceding calendar year. Employees covered by the Congressional Accountability Act, Chapter 5 of Title 3 United States Code, or the Government Employee Rights Act of 1991 will look to those statutes for available remedies.
WHEN DOES THE PWFA GO INTO EFFECT?
The PWFA does not become effective until June 23, 2023, and the EEOC will have until December 2023 to issue regulations regarding the PWFA.
Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP”)
The PUMP Act extends protections to all breastfeeding employees through the first year of the baby’s life. Employers are required to provide a place other than a bathroom that is shielded from view which can be used for the employee to express milk.
WHAT ARE THE KEY PROVISIONS OF THE PUMP ACT?
One key provision of the PUMP Act requires employers to count time spent expressing breast milk as hours worked if the employee is on the clock during that time. However, the employer does not have to compensate an employee receiving a reasonable break time to express milk unless otherwise required by law. Another key takeaway allows a 10-day safe harbor period for employers to accommodate the employee before the employee can seek court action unless the employee has been discharged for making a request to express milk or opposing discrimination or the employer has indicated it has no intention of complying with the law.
ARE CERTAIN EMPLOYERS OR EMPLOYEES EXEMPT FROM THE PUMP ACT?
The PUMP Act exempts employers with less than 50 employees where compliance would be an undue hardship on the employer. In addition, air carriers are exempted from the PUMP Act. Rail carriers however are required to comply with the PUMP Act unless they would incur significant expense or if compliance would create unsafe conditions for an individual who is an employee who maintains the right of way. Motorcoach employers are also subject to the PUMP Act except if it would incur a significant expense, not including retrofitting the coach or allowing expression of milk during scheduled stops. However, certain employees of rail and motorcoach carriers who are involved in movement are exempt from the PUMP Act for three years following enactment.
WHAT DAMAGES ARE AVAILABLE UNDER THE PUMP ACT?
The PUMP Act is now part of the Fair Labor Standards Act, which governs wage and hour practices. An employee will typically have 2-3 years (depending on if the violation is willful) to bring a lawsuit and can receive such remedies as equitable relief, backpay for lost wages, front pay, liquidated damages, and attorney’s fees and costs.
WHAT IF I THINK MY RIGHTS WERE VIOLATED UNDER THE PWFA OR THE PUMP ACT?
Sass Law Firm represents pregnant and nursing workers in discrimination and retaliation cases. If you are a victim of pregnancy or nursing discrimination at work, contact experienced employment law attorneys who can fight for your rights.