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January 2023

The 2023 Omnibus Appropriations Act Contains Broad Protections for Pregnant Women and Nursing Mothers

On December 29, 2022, President Biden signed the $1.7 trillion Consolidated Appropriations Act of 2023, which contained two provisions protecting women and mothers. The first is the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act (“PUMP Act”) into law. The second is the Pregnant Workers Fairness Act (“PWFA”).

The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”)

The PUMP Act amends the Fair Labor Standards Act of 1938 (“FLSA”) to provide additional clarification, protections, and rights for nursing mothers. The PUMP Act went into effect immediately, although the right to sue under the PUMP Act starts 120 days after enactment, or on April 28, 2023.

Since 2010, the FLSA has provided limited protections for pregnant and nursing mothers. These protections were found in Section 207 of the FLSA (29 U.S.C. § 207), which applied only to hourly, i.e., non-exempt workers. Under Section 207(r), the FLSA protected “Break Time for Nursing Mothers.” It required employers to provide reasonable break time for hourly employees to express breast milk in a private place each time the employee needed to express milk for one year after the employee’s child’s birth. The law specified that a private place was not a bathroom. It also provided that employers were not required to compensate employees for reasonable break time to express milk. 

The PUMP Act broadened and clarified these protections. First, the PUMP Act expanded the protections to all hourly and salaried (exempt and non-exempt) employees, with limited exceptions. It did so by moving the requirements for break time for nursing mothers to the section of the FLSA that applies to all employees, not just hourly, non-exempt employees. Specifically, the PUMP Act deleted FLSA Section 207(r) and replaced it with a new section, Section 218d (Section 18D).

Second, the PUMP Act clarified that employers are not required to provide paid break time for employees to express milk or pay employees for the time spent expressing milk during the workday. However, the PUMP Act explains that time spent by employees expressing milk and working shall be considered hours worked for which compensation is required. 

Third, in addition to adding Section 218d, the PUMP Act amends the FLSA enforcement provisions, 29 USC 215 and 216, to create mechanisms for employees to bring claims under the new provisions. Specifically, the PUMP Act amended 29 USC 215(a), creating a new subsection (6), which makes it unlawful for a person or employer to violate any section of the PUMP Act. Additionally, the PUMP Act amended 29 USC 216(b), which now provides that an individual or employer who violates the PUMP Act will be liable to the employee for legal and equitable relief, including employment, reinstatement, promotion, payment of wages lost, and payment of an additional equal amount as liquidated damages.

The PUMP Act also creates a notice and cure requirement for employees who believe their employer violated it. Before bringing a cause of action against their employer for an alleged violation of the PUMP Act, the employee must notify the employer of the purported violation and give the employer ten days to cure. The notice and cure requirement does not apply to terminated employees because they requested break time to express milk or opposed employer conduct related to the PUMP Act. 

Finally, the PUMP Act preserves the current framework of the “undue hardship” exception for providing rest breaks. Under this exception, employers with fewer than 50 employees are exempted from complying with the PUMP Act’s requirements if doing so would impose undue hardship or expense considering the size, financial resources, nature, or structure of the employer’s business. Likewise, the PUMP Act carves out a limited exception for the crews of air carriers and other industries.

The Pregnant Workers Fairness Act (“PWFA”)

In addition to the PUMP Act, the 2023 Omnibus Bill included the PWFA. Under the PWFA, employers with 15 or more employees must provide reasonable accommodations to employees and job applicants with temporary physical or mental limitations due to pregnancy, childbirth, or related conditions, unless doing so would create an undue hardship for the employer. This requirement goes into effect on June 27, 2023. 

Similar to the Americans with Disabilities Act (“ADA”), employees and applicants are qualified for a position if they can perform the essential functions of the employment position with or without accommodation. They are also qualified under the PWFA if they can perform the essential functions with a reasonable accommodation, meaning: “(A) any inability to perform an essential function is for a temporary period, (B) the essential function could be performed in the near future, and (C) the inability to perform the essential function can be reasonably accommodated.”

Some reasonable accommodations that employers may use to comply with the PWFA are:

•    Transfer to a light-duty role for a temporary period and/or help with manual labor; 
•    More frequent, longer, or more flexible breaks for hydrating, eating, resting, or using the toilet; 
•    Providing seating options for the employee; 
•    Allowing the employee flexibility for prenatal or postnatal appointments;
•    Granting the employee time off to recover from childbirth or bed rest.

Lawmakers drafted the PWFA to fill a gap in worker protection between the ADA and the Pregnancy Discrimination Act. The ADA only protected workers with pregnancy-related disabilities. The Pregnancy Discrimination Act only gave workers the right to an accommodation if the worker could point to other similarly situated people in their workplace who received accommodations. 

Impact on Employers
Employers should review and update their policies to ensure compliance with the PUMP Act and PWFA. In addition, state and local laws may include broader protections, and we recommend contacting your trusted Gordon & Rees attorney to verify that your company’s policies are in compliance.

Employment Law

Daniel O. Culicover
Nicole E. Demmon

Employment Law