News

Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) For Nursing Mothers Act

August 2, 2023

By Alan C. Blanco, Esquire

Two recent legislative developments came as the result of the Consolidated Appropriations Act passed at the end of 2022.  The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, seeking to correct gaps in the coverage of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).  The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, went into effect April 28, 2023, expanding lactation rights.

The PWFA

The PWFA is closely modeled on the Americans with Disability Act (ADA) and expands the protections of pregnant workers that were passed under the Pregnancy Discrimination Act (PDA) in 1978, which made it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. Under the ADA, pregnancy related conditions could qualify as a disability, but not all pregnancy related conditions could meet this threshold.

The PWFA requires covered employers to provide reasonable accommodation to qualified employees who have known limitations related to pregnancy, childbirth, or related medical conditions. It allows employees to request accommodation for childbirth and for pre-and post-partum conditions related to pregnancy. Covered employers generally include private and public employers of 15 or more employees, and certain other employers including labor organizations.  Qualified employees are employees or applicants who can perform essential functions of the position, with or without reasonable accommodation.

Under the PWFA, an employee must be provided reasonable accommodation if she cannot complete an essential function if the inability to perform the essential function is temporary, the employee can perform the function in the near future, and the inability can be reasonably accommodated.  The phrase ‘‘known limitation’’ covers physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, whether or not such condition meets the definition of disability under the ADA.  Here are some practical pointers in using the PWFA to help union members:

• The employer must know about the work limitation. This means that the employee, with or without the Union’s help, must let the employer know about the limitations related to the pregnancy.
• Changes to how, where, or when the job is done (accommodations) may be needed because of physical changes in pregnancy (for example, back pain, morning sickness, bladder control), medical conditions related to pregnancy or made worse by pregnancy, and related medical conditions.
• Some examples identified by the Equal Employment Opportunity Commission (EEOC) as potential reasonable accommodations for consideration include the ability to sit and drink water, closer parking, flexible hours, appropriately sized uniforms and safety apparel, additional break time to use the bathroom, eat, and rest, and avoiding compounds not safe for pregnancy.
• Employers must engage in the interactive process and must provide reasonable accommodation unless doing so would impose an undue hardship, a standard which had been interpreted under the ADA as the employer having the burden of showing that accommodation would impose a significant difficulty or expense. If one accommodation arguably imposes an undue hardship and another does not, accommodation must still be provided. Leave is the accommodation of last resort; it is illegal for an employer to require a pregnant worker to take paid or unpaid leave if another accommodation can be provided.

The EEOC has started to enforce the PWFA as of its effective date and is accepting charges of discrimination under the statute.  Regulations from the EEOC are expected in the coming months.

The PUMP Act

Under the PUMP Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth.  The frequency of breaks and the duration can vary.  The space provided must not be a bathroom and it must be shielded from view and intrusion. The space can be a temporary converted space, or employers may choose to create a permanent dedicated lactation space.  Almost all employers covered by the Fair Labor Standards Act (FLSA) must comply but requirements may differ for employers below 50 employees.

Break time may be unpaid, but if the employee is not completely relieved from duty, the time used to pump breast milk at work must be paid.  Standard FLSA principles apply to determine whether the employee is completely relieved from duty.  The PUMP Act is enforced through the Department of Labor’s Wage and Hour Division.

A Role for Unions

Both the PWFA and the PUMP Act confer individual statutory rights on eligible employees.  This does not mean, in a Union environment, that an employee must confront their employer unassisted.  Both statutes involve broadly the improvement of wages, hours, and working conditions for employees – the traditional role of unions. To enlist the Union’s help, the employee will have to let the Union know that help is desired, and both the employee and the Union may have to advise the employer that the employee has requested the Union’s assistance.  If the employee requests the Union’s presence and assistance with matters under the PWFA or the PUMP Act, the employer should allow this and may risk an unfair labor practice if it refuses.

Depending on the contract language in the CBA’s non-discrimination clause, if there is one, or other potentially relevant contract language, the grievance procedure may also be available as a tool for enforcing the PWFA or the PUMP Act. Whether or not there is applicable language in the CBA, employees should also benefit from the Union’s help in negotiating the governmental bureaucracy at the EEOC or the Department of Labor, if that becomes necessary under either the PWFA or the PUMP Act.  As with other matters, Rothman Gordon attorneys are available to assist and answer questions on these issues.  Contact us online or call (412) 338-1195.