A Summary of the 2023 Federal Laws to Protect

Pregnant Workers Rights in the Workplace 2023 was a groundbreaking year for federal protections of pregnant workers rights in the workplace with the implementation of the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) and the Pregnant Workers Fairness Act (“PWFA”). Below, we provide a short summary of what these new laws are and what they mean for the workplace.

The PUMP Act

On December 29, 2022, the Consolidated Appropriations Act 2023 was signed into law which included the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).

The PUMP Act amends the Fair Labor Standards Act (FLSA) to expand the requirements to provide reasonable break time and a private space for all nursing employees to express breast milk while at work. Employers are required to provide the reasonable breaktime and private space to a nursing employee for up to one year after the birth of the employee’s child. This provision applies to all FLSA covered employers.

Most importantly covered employers under the PUMP Act must provide all employees a shielded place free from public intrusion and the place must not be a bathroom. Additionally, during a nursing employee’s break time, the nursing employee must either be completely relieved from duty or compensated for the break time in the same way as other employees are compensated for break time. Reasonable breaktimes are not clearly defined because they may vary in time length and frequency depending on the needs of the nursing employee.

The Pregnant Workers Fairness Act (PWFA)

The PWFA targets weaknesses in Title VII and the ADA by extending the reasonable accommodations requirement to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. More specifically, the PWFA requires covered employers to provide reasonable accommodations to qualified employees and applicants, including frequent breaks, telework, parking, light duty, and job restructuring. Job restructuring includes temporary suspension of one or more essential functions, acquiring/modifying equipment and uniforms, and modifying examinations or policies.

What does this mean for the workplace?

While the PWFA and the PUMP Act aim to increase protections for pregnant workers in several ways, this may concern some employers. However, here is a breakdown of a few general steps an employer can take to ensure compliance with the requirements:

• Private Space – To be compliant with the PUMP Act, ensure that your nursing employees have access to and are aware of a private space, free from intrusion, shielded from view, and that is functional for pumping milk.
  Functionality for a private space includes a place for the nursing employee to sit comfortably, a flat surface on which to place the pump other than the floor, and an electrical outlet to plug an electric breast pump. Employers do not need to create a permanent, dedicated space, but the space must be accessible for the duration of a nursing employees’ needs. This space MUST NOT be a bathroom.
• Reasonable Break Time – To be compliant with the PUMP Act, ensure that your nursing employees are aware of their right to take breaks to pump breast milk during the work day. This right is extended to them for a period of one year from the date of their child’s birth.
• Create a Lactation Policy – Creating a lactation policy will help to ensure that nursing employees are supported by clearly describing how the employer will accommodate reasonable breaks and private space for nursing employees to express milk.
• Review Reasonable Accommodations – The list of reasonable accommodations for pregnant workers has expanded to include receiving closer parking, having flexible hours, and receiving additional break time to use the bathroom, eat, and rest. Employers should discuss and review possible reasonable accommodations with the employee to ensure compliance. If you have concerns about what a reasonable accommodation may be in light of these new regulations, please contact our office.

Further, the U.S. Department of Labor provides industry specific guidance for employers in regards to the private space and reasonable breaktime requirements for nursing employees. Below please find a short summary for the education, retail & restaurant, and transportation industries.

Education Industry

• An employer may not require a teacher or employee to adhere to a fixed schedule (i.e. during lunch or recess periods) that does not meet the teacher’s or employee’s need to pump.
• If multiple employees need to express milk during the workday, the employer may choose to meet the nursing employees’ needs by providing multiple dedicated pumping rooms throughout the building or provide a large room with privacy screens which multiple employees may use simultaneously.
• If an employer utilizes video recording devices, the nursing employee must be free from employer observation when expressing breast milk by blocking or turning off the recording device(s) during the break or providing barriers to shield the employee from the recording device(s).

Retail/Restaurant Industry

• Employers cannot require nursing employees to make up the time that they spend on pump breaks nor can work time be added an employee’s normal schedule.

Transportation Industry

• If an employee does not have a fixed work location, an employer may partner with businesses along the employee’s transportation route to accommodate the nursing employee’s need to take pump breaks. The private space must meet all FLSA requirements.

If you have questions about best practices to comply with these new federal workplace laws and requirements, please contact our office.

Resources:

PWFA:

• EEOC
• EEOC Summary
• Federal Register

PUMP: Department of Labor

• Pump at Work
• Pregnant Nursing Employment Protections

DOL: Department of Labor

• Nursing Mothers FAQ

Womenshealth.gov

• More industry specific guide