On New Year’s Day, President Biden signed into law a $1.7 trillion Omnibus spending bill that includes several new protections for pregnant women. These include the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) and the Pregnant Workers Fairness Act (“PWFA”).
Providing Urgent Maternal Protections for Nursing Mothers Act
The PUMP Act expands the 2010 federal workplace protections for women who need to express breast milk. The new law requires that employers provide these accommodations for other types of workers not covered under existing law.
The PUMP Act also requires that time spent expressing breast milk while not relieved from duty must be considered hours worked. It also expands the available time period for such accommodations from one year to two years.
Pregnant Workers Fairness Act
The PWFA applies to employers with 15 or more employees, requiring them to provide qualified employees with reasonable accommodations for known limitations of pregnancy, childbirth, or related medical conditions.
A “qualified employee” is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position. An individual is considered qualified even if the inability to perform the essential functions is for a temporary period, can be performed in the near future, and the inability to perform the essential function can be reasonably accommodated.
“Known limitations” are those physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee, or her representative, has communicated to the employer and the condition need not meet the definition of a disability under the ADA.
The PWFA also creates five new unlawful employment practices.
New Unlawful Employment Practices
- Failing to make reasonable accommodations for the known limitations of pregnancy, childbirth, and related medical conditions of a qualified employee.
- Requiring a qualified employee affected by pregnancy, childbirth, or related medical condition to accept accommodation that is not reasonable or was not decided on through an interactive process.
- Basing the denial of employment opportunities to a qualified employee on the need to make reasonable accommodations required under the PWFA.
- Requiring a qualified employee to take any kind of leave if another reasonable accommodation could be provided to the employee.
- Taking adverse action in conditions, privileges, or terms of employment in response to a qualified employee requesting or using reasonable accommodations under the PWFA.
Defenses
Like the ADA, the PWFA allows a defense for employers who can demonstrate that they—in good faith—consulted with the employee on their limitations and attempted to identify and make reasonable accommodations that provide the employee with an effective opportunity and do not cause undue hardship.
How to Respond
The PWFA requires employers to treat known limitations caused by pregnancy, childbirth, or related conditions like disabilities under the ADA. They must engage with qualified employees in an interactive process designed to provide reasonable accommodations for those limitations—treating leave (even paid leave) as a last resort.
In order to avoid litigation and establish a defense to any potential claims, affected employers should document their good faith efforts to identify and provide such accommodation.