As part of the Consolidated Appropriations Act of 2023, Congress passed two new pregnancy-related laws requiring covered employers to provide reasonable accommodations to employees due to pregnancy, childbirth, and related medical conditions. The two new laws are the Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), effective April 28, 2023. These laws will generally enhance the protections afforded to pregnant employees and create new compliance obligations for employers.
The PWFA will require employers with 15 or more employees to grant temporary and reasonable accommodations for pregnant employees or pregnant job applicants. Under the current Pregnancy Discrimination Act (PDA), covered employers are generally only prohibited from discriminating against pregnant employees. The PDA does not, however, guarantee accommodations for pregnant employees. The PWFA will not only require covered employers to provide reasonable accommodations to pregnant employees, but will also prohibit employers from discriminating against a job applicant or employee because of their need for a pregnancy-related accommodation.
If this all sounds familiar, it is because the PWFA’s protections are similar to those outlined in the Americans with Disabilities Act (ADA). Like the ADA, the PWFA will require covered employers to engage in an interactive process with pregnant employees and to provide reasonable accommodations where appropriate. But, like the ADA, pregnant employees will not necessarily be entitled to the accommodation of their choice under the PWFA – just a reasonable accommodation that does not create an undue hardship on the employer. Notably, though, the PWFA will also prohibit employers from requiring employees to take paid or unpaid leave when a different reasonable accommodation is available. Lastly, the PWFA will prohibit employers from retaliating against an employee who requests or receives a reasonable accommodation due to pregnancy, childbirth, or a related medical condition.
The other recently enacted law, the PUMP Act, will expand employers’ existing obligations to provide employees with time and space to express breastmilk. In particular, the PUMP Act will require that all breastfeeding employees, whether salaried or hourly, be given time to express breastmilk and a private place to do so, other than a bathroom. Additionally, time spent expressing breastmilk must be considered hours worked if the employee is working while expressing breastmilk. Notably, employers with fewer than 50 employees will be given an opportunity to request an exemption from the law if they demonstrate that compliance would cause an undue hardship.
Although the PWFA and PUMP Act will expand the rights of pregnant employees under federal law, numerous states and cities have already passed their own pregnancy accommodation laws, often exceeding these upcoming federal requirements. For example, cities like Philadelphia and Pittsburgh both have robust local ordinances addressing pregnancy accommodations in the workplace. Thus, for employers who operate in jurisdictions where existing laws require workplace accommodations for pregnant employees, the PWFA and PUMP Act may not have much of an impact. However, for all other employers, now is the time to start considering what changes to current practices might be necessary in order to comply with the PWFA and PUMP Act when they become effective.