On June 27, 2023, the Pregnant Workers Fairness Act (PWFA) took effect. Employers should prepare themselves to comply with this new federal law, which creates much broader and different legal obligations for employers with respect to pregnant workers.
Compliance includes communication with pregnant workers
Under the PWFA, covered employers are required to provide a “reasonable accommodation” to workers and applicants with known limitations related to pregnancy, childbirth or a related medical condition unless doing so would amount to an undue hardship. An “undue hardship” is an accommodation that would cause significant difficulty or expense to the employer.
Covered employers include any private or public sector employer with at least 15 employees, as well as Congress, federal agencies, employment agencies and labor organizations. Importantly, the protections under the PWFA apply to both applicants and current employees. The coverage threshold of just 15 employees differs significantly from the FMLA requirement of 50 employees, and means that the PWFA will apply to a much broader scope of employers than the FMLA.
The Equal Employment Opportunity Commission (EEOC) has issued guidance for employers and the general public regarding the PWFA. But key to an employer’s successful compliance with the PWFA will be communication with pregnant workers. Much like their obligations under the Americans with Disabilities Act, employers now must engage in the interactive process with a qualified pregnant worker to determine whether a reasonable accommodation exists and can be implemented absent undue hardship.
The PUMP Act extends federal protections
The PWFA is not the only recent development under federal law to protect pregnant workers and/or new parents. In late 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law. The PUMP Act extends protections provided to nursing mothers under the Fair Labor Standards Act (FSLA)—which applies to employers with 50 or more employees and generally establishes federal standards for minimum wage, overtime pay, recordkeeping, breaks and child labor standards.
As amended under the PUMP Act, the FSLA now protects an employee’s right to take break time to express breast milk for up to one year after the child’s birth. Additionally, the PUMP Act expanded federal protections for nursing employees by requiring that employers provide a private place for nursing mothers to pump.
In light of these recent changes, employers should look to reevaluate (or establish) policies governing how pregnant workers might request an accommodation. Additionally, employers should anticipate questions about any new obligations and changes to internal practices required under the PUMP Act and PWFA by educating their managers about these legal developments.