New Year Rings in New Protections for Pregnant and Post-Partum Employees

On December 29, 2022, President Biden signed into law two bills that add protections for pregnant and post-partum employees—the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA).

PUMP Act

First, the PUMP Act amends the Fair Labor Standards Act (FLSA) to expand coverage to all employees (exempt and non-exempt) existing requirements that employers provide employees with reasonable break time to express breast milk for one year following the birth of a child and a place (other than a bathroom) to do so away from co-workers and the public. Until now, millions of employees were excluded from coverage. The PUMP Act’s protections take effect immediately, while the remedies provisions become effective on April 28, 2023.

The PUMP Act requires time spent to express breast milk to be considered “hours worked” when calculating compensable time under the FLSA if the employee is not completely relieved from duty during the break. Another notable feature of the Act is that affected employees must notify their employer of a failure to provide a suitable place to pump and allow the employer ten days to remedy the situation before commencing legal action. This notification and cure period is waived if the employer refuses to provide a private place to pump or retaliates against an employee for making the request or opposing the employer’s refusal.

The PUMP Act also clarifies that the same damages that are available under other provisions of the FLSA are available for PUMP Act violations, including unpaid wages, reinstatement, back and front pay as well as liquidated damages.

Employers with fewer than 50 employees may qualify for a hardship exemption if complying with the PUMP Act would impose an undue hardship, causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

PWFA

Second, the PWFA essentially provides pregnant employees and applicants the same protections that are available for disabled workers under the Americans with Disabilities Act of 1990 (ADA), but on a temporary basis. As such, it requires employers with 15 or more employees to grant reasonable and temporary accommodations to employees and applicants for known limitations related to pregnancy, childbirth, and related medical conditions.

The PWFA mirrors other aspects of the ADA, including requiring employers to engage in the interactive process with employees to craft a reasonable accommodation (if one is available and doesn’t impose an undue hardship) that will allow the employee to perform the essential functions of their job. The Act also prohibits employers from requiring a qualified employee to take leave if a reasonable alternative accommodation is available. And, just as with the ADA, employers cannot deny employment opportunities or otherwise take adverse action on terms, conditions, or privileges of employment against a qualified employee for requesting or using a reasonable accommodation.

The PWFA takes effect on June 27, 2023, and will be enforced by the U.S. Equal Employment Opportunity Commission (EEOC). The Act also directs the EEOC to issue guidance within the next two years describing examples of reasonable accommodations for pregnant workers.

Key Takeaway

Michigan employers should consider reviewing their employment policies and practices to ensure compliance with these new laws since Michigan, unlike other jurisdictions, currently does not have any state laws that provide greater protection than the federal laws for pregnant or lactating workers. The Rhoades McKee Human Resource and Employment Law Team is available to assist employers with policy and handbook reviews and other employment matters.