Where previous protections offered by the Americans with Disabilities Act, the Fair Labor Standards Act, and the Pregnancy Discrimination Act of 1978 fell short, employees were left to make hard choices between quitting their jobs or working in a position that did not fully accommodate their medical needs while pregnant or after giving birth.  Although some state laws fill those needs, many states do not provide any protection. During 2022, two important protections were signed into law by President Joe Biden: the Pregnant Workers Fairness Act, and the Providing Urgent Maternal Protections for Nursing Mothers Act. The new protections put in place by these acts ensure that pregnant employees will not suffer because of their pregnancy, but instead be provided the proper and necessary time off and accommodations after giving birth.

The Pregnant Workers Fairness Act (PWFA)

Before Congress passed the Pregnancy Discrimination Act of 1978 (PDA), it was common for employers to exclude pregnant women from the workforce. The PDA changed this by guaranteeing the right not to be treated adversely because of pregnancy, childbirth, or related medical conditions, and the right to be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” Unfortunately, many courts interpreted the PDA narrowly and allowed employers to refuse to accommodate workers with medical needs arising out of pregnancy even when they routinely accommodated other physical limitations.

Moreover, while the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with disabilities, the ADA is inadequate because pregnancy itself is not a “disability” under the ADA.

On December 29, 2022, President Joe Biden signed into law the Pregnant Workers Fairness Act (PWFA). PWFA promotes women’s health and economic security by ensuring that workers with limitations related to pregnancy, childbirth or related medical conditions are not forced out of their jobs or denied reasonable workplace accommodations.

The PWFA will require employers with 15 or more employees to make reasonable accommodations for employees who have limitations stemming from pregnancy, childbirth, or related medical conditions, unless the accommodation would impose an undue hardship on the employer. The PWFA also prohibits employers from discriminating against a job candidate or employee because of their need for a pregnancy-related accommodation. The PWFA relies on a reasonable accommodation framework already familiar to employers accustomed to the ADA’s requirements.

The PWFA will be enforced by the US Equal Employment Opportunity Commission and the US Attorney General’s Office as it pertains to private sector employees.

Providing Urgent Maternal Protection (PUMP) Act

Also included in the Omnibus Bill signed into law by President Biden was the Providing Urgent Maternal Protections for Nursing Mothers Act (also known as the PUMP Act). The PUMP Act expands a 2010 amendment to the Fair Labor Standards Act (FLSA), which requires employers with 50 or more employees to provide non-exempt employees reasonable break time and a private location (other than a restroom) to pump and store breast milk at work (also known as lactation accommodations) for up to one year after the child’s birth. The PUMP Act expands this right to cover all employees covered under FLSA, non-exempt and exempt. Employers who employ less than 50 employees are not fully exempt from the requirements under the PUMP Act, however, they may be exempt if the PUMP Act requirements “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” The PUMP Act also include exceptions for air carriers’ crewmembers, given the tight quarters that many flight attendants work in.

The PUMP Act also amends the FLSA to clarify that the same damages that are available under other FLSA provisions apply to PUMP Act violations, which includes, but are not limited to, the payment of back pay, liquidated damages, reinstatement, and reasonable attorney fees.

Employees must now notify their employers if they believe their employer is out of compliance with the PUMP Act and must give their employer 10 days to come into compliance before making any claim of liability against their employer. The Department of Labor (DOL) is responsible to enforce this Act.

What This Means for Employers

The PWFA will take effect in June 2023. PUMP Act will become effective immediately. Employers may want to develop and/or amend workplace policies in response to the new laws.

If you wish to discuss the impact of the new laws on your business and to assess the best approach for complying with these new developments or if you have any questions regarding PWFA or the PUMP Act, please contact the authors of this article or any member of Dykema’s Labor and Employment team.