On December 29, 2022, President Biden signed two (2) bills into law that expand workplace protections for pregnant and nursing employees—the Pregnant Workers Fairness Act (the "PWFA") and the Providing Urgent Maternal Protections for Nursing Mothers Act (the "PUMP Act"). While many states have enacted laws protecting pregnant and nursing workers (including Maine, Massachusetts, and New Hampshire), it has taken some time for the federal government to follow suit. For instance, the Pregnant Workers Fairness Act was first introduced in 2012 and did not make it out of the committee stage for many years. Similarly, while the Affordable Care Act of 2010 required employers to provide reasonable time to express milk and a suitable place for pumping, most salaried employees were excluded from these protections. This article provides an overview of the protections afforded under the PWFA and the PUMP Act, highlights compliance deadlines, and explains how the federal laws differ from existing state law requirements.

The Pregnant Workers Fairness Act (PWFA)

The PWFA operates similarly to the Americans with Disabilities Act (the “ADA”) and affords disability-like legal protections for pregnant employees in the workplace by codifying their right to reasonable accommodations.  Covered employers must grant temporary and reasonable accommodations to pregnant job applicants and employees unless the employer can demonstrate the accommodation would impose an undue hardship.  In addition, employers must engage in the interactive process to determine an appropriate reasonable accommodation related to the pregnancy, childbirth or related medical condition.

The PWFA also prohibits covered employers from discriminating, retaliating, coercing, intimidating, threatening, or interfering with an employee’s request or receipt of a reasonable accommodation for a known limitation related to pregnancy.

How the PWFA Differs From Existing Federal Law

Under the existing federal Pregnancy Discrimination Act, workers are protected from discrimination based on pregnancy or related conditions and employers are prohibited from taking adverse employment action against workers because of pregnancy.  But the Pregnancy Discrimination Act did not guarantee accommodations for pregnant workers and federal courts have held accommodations must only be provided to pregnant workers if accommodations are made for other similarly situated workers (with inconsistent interpretations of what this means across the country).  The PWFA enhances the protections for pregnant workers by requiring employers to offer reasonable accommodations absent undue hardship.

Effective Date

The PWFA goes into effect on June 27, 2023.

Covered Employers

The PWFA applies to public employers and private employers with 15 or more employees.

Consequences of Violating the PWFA

Individuals who are subject to discrimination under the PWFA are entitled to recover lost pay, compensatory damages, punitive damages, and reasonable attorney's fees.

"Reasonable accommodations" under the PWFA

The PWFA requires the Equal Employment Opportunity Commission (the "EEOC") to promulgate guidance by year's end with examples of reasonable accommodations for pregnant workers. Reasonable accommodations under the PWFA could include light duty, allowing more frequent bathroom breaks, providing a stool for sitting, etc.

Existing State Laws Protecting Pregnant Workers

• MAINE: all employers are already required under the Maine Human Rights Act to provide reasonable accommodations to pregnant workers, including more frequent or longer breaks, temporary modifications in work schedules, seating or equipment, temporary relief from lifting requirements, and temporary transfer to less strenuous or hazardous work. Further, the definition of sex-based discrimination was expanded to include "pregnancy and medical conditions that result from pregnancy."
• MASSACHUSETTS: under the Massachusetts Pregnant Workers Fairness Act all employers must engage in the interactive process and provide reasonable accommodations to pregnant employees, refrain from discriminating against employees due to pregnancy or a pregnancy-related condition, and provide written notice of the right to be free from discrimination due to pregnancy or a pregnancy-related condition and the right to reasonable accommodations. Employers must also provide written notice of the rights available under the Act to new employees and to employees who notify them of their need to express milk at work (within 10 days of the notification).
• NEW HAMPSHIRE: under New Hampshire's pregnancy discrimination laws, employers with six (6) or more full or part-time employees must permit their employees to take a leave of absence for any period of temporary disability resulting from pregnancy, childbirth, or a related medical condition and make the employee's original job or a comparable position available unless business necessity makes it impossible or unreasonable. New Hampshire employers must also treat pregnancy, childbirth, and related medical conditions as temporary disabilities for all other employment-related purposes, including receipt of benefits, and must treat pregnant employees the same as other employees who are affected by temporary disability. Finally, New Hampshire law expands the definition of sex-based discrimination to include "pregnancy and medical conditions which result from pregnancy."

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Covered employers must provide reasonable break time for an employee to express milk each time the employee has a need to express milk for a one-year period after the child's birth. Employers must provide a non-bathroom, private space that the employee may use to express milk. The PUMP Act, unlike the protections previously afforded by the Affordable Care Act, applies in equal measure to exempt and non-exempt employees. Unless an exception under state or federal law applies, employers generally do not need to compensate non-exempt employees for the break if the employee is completely relieved from duty during the entirety of the break.

How the PUMP Act Differs From Existing Federal Law

Existing federal law requires employers to provide reasonable break time and a private, non-bathroom space for nursing employees to express milk during the workday. However, many nursing employees were not eligible for the protections afforded by this law. The PUMP Act extends these protections to previously excluded exempt employees, creates a private right of action where employees can seek monetary remedies if their employers fail to comply, and clarifies that employees must be paid if they are not completely relieved from duty while expressing milk.

Effective Date

Except for changes to available remedies, which take effect on April 28, 2023, the requirements of the PUMP Act went into effect as of December 29, 2022.

Covered Employers

All employers are subject to the new law. However, employers with less than 50 employees may be excused from compliance if providing the required break time and space would cause undue hardship (significant difficulty or expense). In addition, the Act contains special carve outs for rail carrier and motorcoach employers and airline flight crewmembers are not covered.

Consequences of Violating the PUMP Act

An employee who requests a place to express milk and is denied must notify their employer that said denial violates the PUMP Act and then must provide the employer ten (10) days to come into compliance before bringing suit. However, this cure period does not apply to employers that indicate they have no intention of providing such a place or to employers that discharge the employee for requesting a private place or breaktime, or for opposing the employer's unlawful conduct under the Act. Employees that are unlawfully denied a place to express milk and/or subjected to discrimination or retaliation under the PUMP Act are entitled to recover remedies, including but not limited to reinstated employment, lost wages and an additional equal amount as liquidated damages.

Existing State Laws that Protect Employees Who Need to Express Milk at Work

• MAINE: Maine employers are already required to provide adequate break time to nursing employees and must make reasonable efforts to provide a clean and private non-bathroom space where an employee can express milk. Under Maine law, employees are entitled to these protections for up to three (3) years following childbirth.
• MASSACHUSETTS: the Massachusetts Pregnant Workers Fairness Act treats lactation as a type of pregnancy-related condition that employers must reasonably accommodate by providing a private, non-bathroom space to express milk as well as reasonable break time. Employers must also provide written notice to new employees and to employees who notify them of their need to express milk at work (within 10 days of the notification) of their rights under the Massachusetts Pregnant Workers Fairness Act.
• NEW HAMPSHIRE: does not have a state law protecting or supporting employees who need to express milk in the workplace.

Compliance Pointers

To prepare for federal enforcement of the PWFA and PUMP Act, as well as to ensure compliance with existing state law, we recommend the following:

• Consider whether the new federal laws impose requirements that are more stringent than what is currently required under applicable state law.
• Review and revise your personnel policies to make sure they are consistent with these laws.
• Inform Human Resources and employees with personnel decision-making authority about these federal and state requirements so they know how to respond to pregnant or nursing employees' accommodation requests.
• Check in with pregnant employees or employees who are using break time to express milk to verify that any accommodations are effective and to detect any issues related to discrimination or retaliation.
• Keep in mind that in addition to adhering to the requirements of the PWFA and PUMP Act, covered employers must also comply with the ADA, the Family and Medical Leave Act, and the Pregnancy Discrimination Act.