*Revised on August 9, 2023
On Monday, August 7, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations for the Pregnant Workers Fairness Act (“PWFA”), which will be found here on August 11. Once published, public comment is invited for 60 days. While the regulations could change before being finalized, employers are encouraged to begin revising policy and related training so that their organizations are compliant with the PWFA. Please do not hesitate to contact your regular Hall Render attorney for assistance.
Among other things, the proposed regulations contain a list of conditions that will be covered if related to pregnancy, examples of reasonable accommodations (including those that should be provided without medical documentation) and definitions of terms that will be important to an employer’s application of the PWFA to its employees (and applicants).
As a reminder, the PWFA was effective on July 27, 2023. Accordingly, new posters should be displayed and the information included in employee handbooks and related policies the new postings include:
- EEOC poster (.pdf)
- FLSA poster (.pdf)
- FMLA poster (.pdf)
Additional resources for compliance, from the EEOC, can be found here:
- What You Should Know About the Pregnant Workers Fairness Act
- Pregnant Workers Fairness Act (PWFA) (.pdf)
- Tips for Asking for a Reasonable Accommodation (.pdf)
- Know Your Rights – Pregnancy and Discrimination – EEOC (YouTube Video)
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While employers have been subject to a number of laws and regulations impacting pregnant and nursing employees for some time, two new laws expand the rights of pregnant employees and nursing mothers in the workplace, ostensibly filling in gaps left by earlier legislation: the PWFA and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”).
Pregnant Workers Fairness Act
The Pregnancy Discrimination Act of 1978 prohibits discrimination based upon an employee’s/applicant’s pregnancy, childbirth or related medical condition, but does not require accommodation. The PWFA found here addresses that void, prohibiting employers with 15 or more employees from discriminating against, and requiring that these employers make reasonable accommodations for, employee and applicant restrictions related to pregnancy, childbirth or related conditions.
Although the PWFA was modeled on the Americans with Disabilities Act (“ADA”), there are some subtle but important differences. Under both the ADA and PWFA, a “qualified” employee/applicant is one who, with or without reasonable accommodation, can perform the essential functions of the job. However, an employee/applicant will also be considered qualified under the PWFA if (i) the inability to perform an essential function is only for a temporary period; (ii) the essential function could be performed in the near future; and (iii) the inability to perform the essential function can be reasonably accommodated.
The PWFA requires an interactive process but, unlike the ADA, does not allow employers to require that an employee/applicant accept an accommodation other than the reasonable accommodation arrived at through the interactive process. Moreover, while a leave of absence is often a possible reasonable accommodation under the ADA, a leave of absence is expressly excluded as a possible reasonable accommodation under PWFA unless no other reasonable accommodation is available.
The PWFA contains an undue hardship limitation similar to that found under the ADA and, like the ADA, complaints of discrimination, retaliation and/or failure to accommodate under the PWFA can be made to the EEOC. EEOC is expected to issue regulations within the year, but unlikely before the PWFA effective date of June 27, 2023.
Providing Urgent Maternal Protections for Nursing Mothers Act
Since 2010, employers have been required by the Fair Labor Standards Act (“FLSA”) to provide reasonable facilities and break time for a lactating employee who is not exempt from minimum wage or overtime requirements under the FLSA. Effective immediately[1], the FLSA requirements for nursing mothers applicable to non-exempt employees must be extended to exempt employees under the PUMP Act found here. The small employer (less than 50 employees) defense of undue hardship under the FLSA is applicable to PUMP Act compliance as well.
The PUMP Act reminds employers that break time is compensable if it does not meet the FLSA or state standard for unpaid time. For example, under FLSA, breaks are non-compensable only if they extend for 20 minutes or more and the employee is completely relieved from duty for the entire break period. Accordingly, if an employee is working (e.g., on email) during a nursing break, the time is compensable.
Perhaps most unusual, but subject to the exceptions below, the PUMP Act requires that employees provide notice to the employer and allow for a 10-day cure period prior to filing a complaint with the Department of Labor about employer non-compliance. Exceptions to the notice and cure requirements include: (i) employees who have been discharged because they made a request for the break time or lactation space; (ii) employees who have been discharged because of opposition to employer conduct related to the PUMP Act; and (iii) when the employer has indicated that the employer has no intention of providing a space for lactation.
Practical Takeaways
In addition to the PWFA and the PUMP Act, many state law and/or local ordinances impose obligations on employers with respect to pregnant employees and/or nursing mothers. There will also be circumstances when the ADA is applicable. Employers are urged to:
- Identify all of the laws, regulations and ordinances applicable to their pregnant and nursing mothers and evaluate, if there are conflicts, which aspects are most beneficial to employees/applicants;
- Update their Reasonable Accommodation Policy;
- Audit their workplace for lactation space(s) (temporary or permanent) which meet the FLSA standards;
- Update policy applicable to nursing mothers so that it applies to all employees and provides for notice and cure; and
- Train supervisors and managers on the application and interaction of these policies.
If you have any questions or would like assistance with the policies or training referenced above, please contact:
- Robin Sheridan at (414) 721-0469 or rsheridan@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
[1] Presumably to provide employers time to effectuate these changes to the FLSA, remedy for violation of the PUMP Act will not be available to employees until April 28, 2023.
