On December 29, 2022, President Biden signed a bill that grants reasonable accommodation rights to pregnant workers and grants workers who are exempt from overtime the right to take breaks to express breast milk. Both provisions, which are actually separate laws, are tucked in the $1.7 trillion 2023 omnibus spending bill, “Consolidated Appropriations Act, 2023.”
Pregnant Workers Fairness Act: One section of the bill establishes the ‘‘Pregnant Workers Fairness Act,’’ which applies to employers with 15 or more employees. This law treats limitations related to pregnancy, childbirth, or related medical conditions similarly to disabilities under the Americans with Disabilities Act (ADA). It takes effect on June 27, 2023 (180 days after the President signed the bill). The new law says it’s an unlawful employment practice for a covered employer to take any of the following actions against a qualified employee affected by pregnancy, childbirth, or related medical conditions:
- Fail to reasonably accommodate any known limitations related to the employee’s pregnancy, childbirth, or related medical conditions, unless it would cause an undue hardship to the business;
- Require the employee to accept an accommodation that is different from the one that the employee and employer arrived at through an interactive process;
- Deny employment opportunities to the employee based on the need to make reasonable accommodations;
- Require the employee to take time off work (paid or unpaid) if another reasonable accommodation is available; or
- Take adverse action against the employee for requesting or using a reasonable accommodation.
The law initially defines “qualified employee” to mean an employee or applicant who (with or without a reasonable accommodation) can perform the essential functions of the position, but goes on to say that the employee is still qualified if:
- Any inability to perform an essential function is only temporary;
- The essential function could be performed “in the near future” (this isn’t defined); and
- The employer can reasonably accommodate the inability to perform the essential function.
The law says to apply the ADA interpretations of “reasonable accommodation” and “undue hardship” to these new accommodation obligations, including the usual interactive process under the ADA, for employees affected by pregnancy, childbirth, or related medical conditions. The Equal Employment Opportunity Commission (EEOC) has one year to issue regulations. Remedies under the new law are the same as under Title VII of the Civil Rights Act (which prohibits discrimination on the basis of race, sex, color, religion, and national origin).
Providing Urgent Maternal Protections for Nursing Mothers Act: Another section of the bill establishes the “Providing Urgent Maternal Protections for Nursing Mothers Act,” also called the “PUMP for Nursing Mothers Act.” Existing federal law already grants the right to nonexempt (overtime-eligible) workers to take reasonable breaks to express breast milk in a private space provided by their employer (other than a bathroom), during the first 12 months after the birth of a child. This new law expands this right to include all workers, including those who are exempt from overtime, with limited exceptions for employees of air carriers, railroads, and motorcoach operators. Here are additional provisions of the new law to be aware of:
- The new law continues to allow employers with fewer than 50 employees to decline to provide such breaks or a private space to express breast milk if they can prove undue hardship, which means significant difficulty or expense in light of the size, financial resources, nature, or structure of their business.
- The law contains new language that says, “Break time provided under [the PUMP for Nursing Mothers Act] shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.”
- The law imposes a new duty for a worker to notify their employer of the lack of a place to express breast milk if they need one and to wait 10 days before filing a lawsuit. Limited exceptions exist when an employer fires an employee for making a request or opposing unlawful conduct or when the employer says it doesn’t intend to comply.
- The new requirements for employers took effect immediately upon the President’s signature on December 29, 2022, but the enforcement provisions (which clarify that affected workers have the right to sue under the Fair Labor Standards Act) don’t take effect until April 28, 2023 (120 days after the date the bill was signed).
Tips: State laws in California, Oregon, and Washington already require most employers to reasonably accommodate employees affected by pregnancy, childbirth, or related medical conditions, and in some cases impose even stricter requirements. You must comply with whichever law (state or federal) is more generous to your employees. You have until June 27, 2023, to comply with the federal law, but it’s not too early to begin reviewing and updating your accommodation policy and procedures. Your initial efforts at reasonable accommodation should focus on solutions for the employee to perform the essential functions of their current job. Based on ADA principles for exploring reasonable accommodations, if you don’t find a solution for the current job, you should consider other open positions for which the employee is qualified. A leave of absence is a last resort, but may be reasonable if it would allow the employee time to recover and return to performing the essential functions of the job. We will be updating our resources, including our Legal Guide, Pregnancy and Disability, and our Model Employee Handbook.
State laws in California, Oregon, and Washington already allow all employees who are lactating to take reasonable breaks to express breast milk. See our Model Policy, Breaks for Nursing Mothers, for details on each state’s unique approach. We will be updating the policy to incorporate the PUMP for Nursing Mothers Act. Even though enforcement of the new law won’t begin until April 28, 2023, it’s wise to begin complying as soon as possible. Contact your Vigilant Law Group employment attorney for any advice.