President Biden signed the Consolidated Appropriations Act of 2023 into law on Dec. 29, 2022. Two new federal protections for pregnant workers and nursing mothers were included in the over 1,600 page spending bill.
The new protections were originally part of two separate bills: the Pregnant Workers Fairness Act (“PWFA”), which added protections for pregnant workers, and the Protections for Nursing Mothers Act (or “PUMP Act”), which added protections for nursing mothers. After failing to pass as standalone bills, portions of the bills were added as amendments to the Consolidated Appropriations Act of 2023 and have been codified into law.
New Federal Protections for Pregnant Workers
As set forth in the Consolidated Appropriations Act of 2023, the PWFA provides that the following conduct by a covered employer constitutes “an unlawful employment practice”:
- Not mak[ing] reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
- Requir[ing] a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in [section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111)];
- Deny[ing] employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;
- Requir[ing] a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or
- Tak[ing] adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
Covered employers include those employing 15 or more employees. The PWFA incorporates many of the definitions from the Americans with Disabilities Act (or “ADA”), including the “interactive process,” “undue hardship,” and “reasonable accommodation.” However, the definition of “qualified employee” under the PWFA is defined to mean:
[A]n employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—
(A) any inability to perform an essential function is for a temporary period;
(B) the essential function could be performed in the near future; and
(C) the inability to perform the essential function can be reasonably accommodated.
The PWFA includes discrimination and retaliation protections and expressly does not preempt state or local laws that provide “greater or equal protection for individuals affected by pregnancy, childbirth, or related medical conditions.”
The PWFA will go into effect on June 27, 2023 (180 days after enactment), and the EEOC must issue guidance no later than one year after the PWFA’s enactment. Congress specifically instructed the EEOC to provide “examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.”
Modified Federal Protections for Nursing Mothers
The Consolidated Appropriations Act of 2023 also included portions of the PUMP Act, which modifies (and somewhat expands) federal protections for nursing mothers. Specifically, the Consolidated Appropriations Act of 2023 removes the existing statutory language in 29 U.S.C. § 207(r) and inserts the following language in 29 U.S.C. § 218c:
(a) IN GENERAL — An employer shall provide —
- a reasonable break time for an employee to express breast milk for such employee’s nursing child for one year after the child’s birth each time such employee has need to express the milk; and
- a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(b) COMPENSATION —
- IN GENERAL — Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance.
- RELIEF FROM DUTIES — Break time provided under subsection (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.
(c) EXEMPTION FOR SMALL EMPLOYERS — An employer that employs less than 50 employees shall not be subject to the requirements of this section, if such requirements would 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.
Like the old federal statute, “reasonable break time” is required only during the first year after the child’s birth. The law also makes clear that it does not preempt state or local laws that offer employees greater protection. This portion of the Consolidated Appropriations Act of 2023 went into effect as of December 29, 2022.
As you can see, the Consolidated Appropriations Act of 2023 includes new federal protections for pregnant women and nursing mothers. In addition to these new requirements, employers should be aware of any state or local law requirements. This is because these new federal protections expressly do not preempt state law and local law.
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