On December 29, 2022, President Biden signed the Fiscal Year 2023 Omnibus Spending Bill, which featured two new laws: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) Act. Both pieces of legislation create a new class of qualifying employees who, until now, were not entitled to the reasonable accommodation process afforded by existing laws.
Set to go into effect on June 27, 2023, the PWFA requires employers to offer reasonable accommodations for qualifying federal, private, and public sector employees with known limitations due to pregnancy, childbirth, or other related medical problems outlined under the Act. Federal agencies, labor organizations, and employers with 15 or more employees must comply with the rule unless doing so would place an unreasonable burden on the business.
The Act requires the EEOC to promulgate regulations for implementing the statute within one year of its enactment. While the EEOC has not yet indicated whether it will do so, it has addressed some frequently asked questions (FAQs) about the Act.
Below is a synopsis of some of the PWFA’s and PUMP’s main features in advance of their effective dates.
What Is the Pregnant Workers Fairness Act?
Similar to the Americans with Disabilities Act (“ADA”), the PWFA mandates that agencies make reasonable accommodations for a qualified worker’s recognized limits caused by pregnancy, childbirth, or other associated medical condition(s), unless doing so would place an unreasonable burden on their operation. The PWFA employs the ADA’s framework for the interactive process of determining a reasonable accommodation. According to the PWFA, an agency or employer cannot demand that an employee take paid or unpaid leave if an alternative reasonable accommodation can be provided.
A key difference, however, is in the definition of a qualified employee. Under the PWFA and the ADA, a qualified employee is any employee who can perform the essential functions of their job with or without reasonable accommodation. However, the PWFA goes further, expanding this definition to include employees who cannot perform the essential functions of their job, so long as the following conditions are met: (a) the inability to perform the essential function is temporary; (b) it could be performed in the near future; and (c) the inability to perform the essential function can be reasonably accommodated.
Additionally, the PWFA creates a cause of action against agencies who deny employment opportunities based on the need to make these reasonable accommodations, or who take any form of adverse action against a qualifying employee requesting reasonable accommodations.
Previously, the Pregnancy Discrimination Act only required agencies and employers to make accommodations for pregnant employees in specific situations, such as when a worker’s pregnancy, childbirth, or related medical condition qualified as a disability under the Americans with Disabilities Act (ADA) or when accommodations were already being made for other similarly situated, non-pregnant employees. The PWFA distinguishes and clearly establishes an agency’s obligations to accommodate qualifying federal employees and applicants, regardless of their accommodation practices pursuant to the ADA, Worker’s Compensation, or other related laws. This is consistent with trends in many states that require accommodations for pregnant employees.
What Qualifies as Reasonable Accommodation?
The concept of reasonable accommodation in the statute is akin to the term in the ADA, which is a modification or adjustment to a job or the work environment that allows an employee with a disability an equal opportunity to satisfactorily perform a job. While accommodations are usually determined through an interactive process between the agency or employer and employee, the PWFA makes no specific mention of what kinds of accommodations would be needed. Rather, the Act mandates that the EEOC “carry out” its obligations by issuing regulations that contain “examples of reasonable accommodations.” These regulations must be issued within one year of the law’s enactment.
What Qualifies as Undue Burden?
Typically, agencies and employers have treated any accommodation of an essential job function as an undue burden on the employee. It remains to be seen how the EEOC will define undue burden in light of the new class of qualified employees. The PWFA suggests an agency or employer can no longer automatically claim an employee’s temporary inability to perform essential job functions creates an undue burden. Without carefully crafted regulations, agencies and employers could see the standard for what constitutes an undue burden become more strictly enforced.
What is the PUMP Act?
With certain exceptions, the PUMP Act altered the Fair Labor Standards Act (FLSA) and took effect immediately. For a year following the birth of the child, agencies and employers are required to give employees a suitable break time so they can express breast milk whenever they need to. Additionally, they are required to provide an area other than the bathroom that is shielded from view and free from intrusion where an employee can express breast milk without being seen or disturbed.
While the Affordable Care Act of 2010 updated the FLSA to offer these protections to nonexempt employees, the PUMP Act extends them to all employees, nonexempt and exempt. Notably, the PUMP Act does not apply to employers with fewer than 50 employees if certain aspects of the law would place an unreasonable burden on the employer, or to certain employees of airlines and the travel industry.
Although the PUMP Act reiterates the FLSA principle that time spent to express breast milk is considered “hours worked” if the employee is not totally freed from duty during the length of the break, an agency or employer is not obligated to provide an employee with a supplemental paid break under these modifications. For example, a nonexempt employee who receives two paid breaks a day is not now entitled to four paid breaks. A nonexempt worker must be paid for the whole break if they continue working or are interrupted during it. Exempt personnel continue to receive their full weekly compensation, regardless of any breaks.
Due to state law requirements, many agencies and employers may already cover pregnancy as a disability under their disability accommodation policies and practices. However, it is crucial to review these policies and procedures to take into account the nuances of the new federal law, including the interactive process framework. Additionally, agencies should examine their lactation policies to make sure they adhere to the PUMP Act and state-specific laws as well.