The Pregnant Workers Fairness Act (“PWFA”) goes into effect today! For those of you who attended Stearns Weaver Miller’s Labor & Employment Law Breakfast Seminar on June 2, 2023, I discussed two new laws that were passed as part of the Consolidated Appropriations Act of 2023 signed by President Biden on December 29, 2022 – the PWFA and the PUMP Act (which stands for Providing Urgent Maternal Protections for Nursing Mothers Act).
If you were not able to attend, here is the cliff-notes version:
- Goes into effect on June 27th!
- The Equal Employment Opportunity Commission (EEOC) is required to issue regulations, but has not unveiled them yet. The agency first has to issue a proposed version of the regulations so the public can give their input and offer comments before the regulations become final. In the interim, the EEOC has published a FAQ on its website.
- Requires covered employers to provide reasonable accommodations to a qualified worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodations will cause the employer an undue hardship.
- Prohibits an employer from requiring an employee to accept an accommodation without discussing it with the employee. This requirement is similar to the interactive process under the Americans with Disabilities Act (ADA).
- Does not preempt state or local law that provide greater protections for employees.
- Prohibits an employer from:
- Denying a job or other employment opportunity to a qualified employee or applicant based on the person’s need for an accommodation.
- Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working.
- Retaliating against a worker who reports or opposes unlawful discrimination under the PWFA or participates in a proceeding under the PWFA (e.g., an investigation).
The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations, including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Unfortunately, we have many unanswered questions. For example, it is unclear under the PWFA whether an employer has an obligation to remove an essential job function to accommodate a pregnant worker. Let’s suppose a pregnant worker cannot lift heavy boxes in her sixth month of her pregnancy, but heavy lifting is an essential job function. Does an employer have to eliminate that function as part of the reasonable accommodation process? We know this is not required under the ADA, but the PWFA is silent on this issue. Stay tuned and I will provide further insight in subsequent blogs once the EEOC issues regulations. In the interim, employers should consult with experienced employment counsel on how to treat these types of issues if they arise.
For those of you who have been waiting anxiously, the EEOC recently released a revised “Know Your Rights” poster (dated June 27, 2023) to include information about the PWFA. According to the EEOC’s website, employers should “remove the old poster and display the new one within a reasonable period of time.” The poster should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.
Except for changes to available remedies, the PUMP Act amendments to the Fair Labor Standards Act (FLSA) became law on December 29, 2022. The PUMP Act requires all employers covered by the FLSA to provide reasonable break time and a private place other than a bathroom for an employee to pump breast milk for their nursing child for one year after the child’s birth each time such employee has a need to pump at work. This new law extended lactation protections to exempt employees who were not covered under existing law.
A few points to remember:
- Employees who telework are eligible to take pump breaks.
- Non-exempt employees must be completely relieved from duty, or the time spent pumping must be counted as hours worked.
- If an employer already provides paid break time and employees choose to use that time to pump, they must be compensated in the same way that other employees are compensated for break time.
- When salaried exempt employees take pump breaks, their salaries may not be reduced to reflect this break time.
- Nursing employees must be provided a space that is: (i) shielded from view; (ii) free from intrusion from workers and the public; (iii) available each time that it is need by the employee; and (iv) cannot be a bathroom.
- The space provided must be a functional space, meaning it has a place for the nursing employee to sit and a flat surface, other than the floor, on which to place the pump.
- Employees must be able to store milk safely while at work (e.g., insulated food container, personal cooler, or refrigerator).
- The PUMP Act has certain exemptions for employers with fewer than 50 employees, if complying creates an undue hardship (meaning significant difficulty or expense).
- The PUMP Act also has exemptions for crewmembers of air carriers, and delayed enforcement until December 29, 2025, for certain employees of rail carriers and motorcoach service operators.
- With some exceptions, before filing a private lawsuit regarding an employer’s failure to provide a space to pump, an employee must provide 10-day notice to their employer to give it time to comply.
- Like most employment laws, the PUMP Act has a “no retaliation” provision.
The Department of Labor (DOL) issued a Field Assistance Bulletin (FAB), which provides guidance to its field staff, but also is helpful for employers because it explains how the DOL interprets the PUMP Act and how the agency may enforce it. The FAB states that ideally, to be functional, an employee should have access to a sink near the space provided to pump so that the employee can wash their hands and clean pump equipment. Additionally, although not legally required, the FAB says, “Spaces to pump breast milk should also include access to electricity, to allow a nursing employee to plug in an electric pump rather than use a pump with a battery power, which may require more time for pumping.”
Don’t forget about the DOL’s Minimum Wage Poster, which was updated to include information on the PUMP Act. If you have the old August 2016 version, replace it with the April 2023 version available here. Florida’s Minimum Wage poster is available here.
Employers should review their existing posters, policies and forms to ensure that they comply with the PWFA and the PUMP Act, and update their job descriptions as necessary. It is also critical for employers to create a process for employees to request accommodations under the PWFA and to document the interactive process.
Given the new requirements under both statutes, it is prudent for employers to train their supervisors and managers, so they don’t mistakenly deny an accommodation or a break required under the new laws.
If you have any questions regarding the PWFA or the PUMP Act, or need assistance updating your policies or practices, our Labor and Employment Law Department lawyers are available to assist.