With the “PUMP Act” (Providing Urgent Maternal Protections for Nursing Mothers Act) already in effect and the “PWFA” (Pregnant Workers Fairness Act) taking effect on June 27, 2023, is your company in compliance with these big changes? As background, the PUMP Act and PWFA were adopted when President Biden signed the 2023 Consolidated Appropriations Act in December 2022. The PWFA will affect employers with at least 15 employees, and the PUMP Act affects employers of all sizes. Here is a 10,000-foot overview of what you need to know.
PWFA: The PWFA provides accommodations for pregnancy, childbirth, and related medical conditions. The PWFA specifically prohibits employers from:
- requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
- denying employment opportunities based on the need to make reasonable accommodations;
- requiring an employee to take a paid or unpaid leave if another reasonable accommodation can be provided; and
- taking adverse action against an employee requesting or using reasonable accommodations.
The PWFA generally adopts the same standards as the Americans with Disabilities Act (“ADA”), which requires employers to provide reasonable accommodations to employees and applicants with known disabilities, absent undue hardship. The PWFA differs because it provides accommodations that are not necessarily guaranteed under the ADA (because some courts did not deem pregnancy a disability). One of the biggest differences between the ADA and the PWFA is that under the PWFA, an employer may have to restructure job duties and essential functions to accommodate the employee. This may include, for example, reassigning heavy lifting duties to other employees during an employee’s pregnancy.
PUMP Act: The PUMP Act expands on existing employer obligations and requirements under the Fair Labor Standards Act (“FLSA”). The FLSA was previously amended in 2010 to provide nursing employees with break time for expressing breast milk at work. However, the amendment applied only to non-exempt employees, i.e., those eligible for overtime payments, and did not apply to exempt employees, i.e., salaried employees. The PUMP Act fixes this glitch by requiring all employees to receive reasonable break time and a place to express breast milk while at work for up to one year after their child’s birth. Note that an exception to the PUMP Act may apply to some transportation employees and small employers with fewer than 50 employees that can demonstrate compliance would be an undue hardship.
Employers implementing the PUMP Act should remember a few things. First, an employer cannot deny a covered employee’s need for a break to pump. Any agreed upon schedule may need to be adjusted as the employee’s nursing needs change. Remember that employees who work remotely are also eligible for pump breaks as if they were working on-site. Second, just as with breaks provided under the FLSA, break time used to pump will count towards hours worked if they are short breaks or if the employee is not completely relieved from all duties. If an employer already provides a paid break time and an employee decides to use it to pump, the employee must be compensated the same as other employees. Otherwise, the PUMP Act does not require employers to pay for pump breaks (but check state and local laws). Third, pumping space must be: (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time the space is needed by the employee; and (4) not a bathroom (presumably so it is sanitary).
If your company has questions about how to comply with the PWFA or PUMP Act, or needs assistance with the interactive process or setting up a compliant nursing space, contact qualified legal counsel. Jackson Walker is ready to help.
* Kishana Ambe, a 2023 Summer Associate from South Texas College of Law Houston, contributed to this article.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information on the PUMP Act and PWFA, please contact Jackie C. Staple or a member of the Labor and Employment practice.
Jackie C. Staple is an attorney in the Labor & Employment section of Jackson Walker’s Houston office. She focuses on advising and counseling companies on employment law compliance and handling labor and employment transactional matters. Jackie has depth of experience drafting various employment, separation and release, and restrictive covenant agreements, as well as conducting due diligence of employment considerations in equity and asset transactions as a member of mergers and acquisitions deal teams.