What do the PUMP Act and PWFA mean for employers?

Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act (effective as of December 29, 2022)

The PUMP Act requires employers to provide a reasonable break for an employee to express breast milk each time the employee has a need to express milk for one year after the child's birth. The Act specifically states that breaks must be provided "each time" the employee needs a break. The Act anticipates the frequency and duration of breaks will depend on factors relating to the nursing employee and the child.

The PUMP Act amends the Fair Labor Standards Act (FLSA) to require employers to pay employees for these breaks if the employer provides paid breaks to other employees. The PUMP Act notes time spent expressing should be considered hours worked unless the employee is completely relieved of duties during the entire break. If the employee is interrupted during the break, they must be paid for the entire break.

Employers must provide the employee a place to express, other than a bathroom, that is shielded from view and free from intrusion.

The Act creates a private right of action for employees who are denied breaks, not provided a qualifying space for expressing, or not paid for the break as outlined in the Act, though the private right of action is not effective until April 28, 2023. Remedies are back pay, front pay, liquidated damages, attorneys' fees and costs.

Employers with fewer than 50 employees are not subject to the Act if it would cause undue hardship. However, employers must remember that undue hardship must be analyzed on a case-by-case basis as the request for an accommodation arises. The Affordable Care Act amended the FLSA to provide these protections to nonexempt employees, and the PUMP Act extends it to exempt and nonexempt alike. Certain industries are exempt from the law regardless of the employer's size: air and rail carrier crew members and motor coach operators.

The Act requires the Department of Labor to issue guidance within 60 days of the Act's passage. What remains unclear is whether the Act's language requiring breaks be granted each time the employee needs it due to concerns without regard to undue hardship or how that could impact business operations in some positions. Employers should stay tuned.

Pregnant Workers Fairness Act (PWFA)

The PWFA requires employers to provide pregnant, postpartum, or lactating employees reasonable accommodations absent undue hardship, including any needs due to pregnancy, childbirth, lactation, and medical conditions associated with each. Employees cannot be required to accept accommodations that are not reasonable, nor can they be required to take leave if they can be accommodated. Employees can also not be denied opportunities that would require accommodation if the denial is based on having to accommodate rather than undue hardship. The PWFA applies remedies available in Title VII of the Civil Rights Act for violations. 

Essentially, the PWFA extends the requirements of the Americans with Disabilities Act (ADA) to pregnant employees. The expressed purpose for passing the PWFA is to cover a gap left by the current federal law protecting pregnant and postpartum employees who need accommodations. Prior to the PWFA, the Pregnancy Non-Discrimination Act only permitted accommodations for the pregnant worker when accommodations were granted to other workers who were not pregnant. Many states already have laws that require accommodation in the situations the PWFA does, but since all do not, the Act provides this relief in all states.

As with the ADA, those workers who can perform the essential functions of the job with or without an accommodation are entitled to an accommodation unless it poses an undue hardship. The PWFA similarly requires employers to have a good faith conversation, termed the interactive process, with the employee seeking an accommodation, and permits the process to occur by phone, email or other ways conducive to the situation.

The PWFA goes into effect on June 27, 2023, and applies to employers in private industry with fifteen or more employees and to government employers without limits on the number of employees.

While many state laws already provide these protections, neither Act preempts more favorable state laws. This is an excellent reminder for employers to review their current policies with legal counsel.

If you have questions about your workplace policies or other employment law matters, please contact Chris or a member of the HSB Employment Law practice team.