Navigating new work provisions for pregnant, nursing employees

Patrice Arend

Over the past year, federal lawmakers have advanced two significant pieces of legislation that expand workplace protections for pregnant workers and nursing mothers.

The Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act offers enhanced provisions for breastfeeding mothers. Meanwhile, the Pregnant Workers Fairness Act (PWFA) requires companies to provide specific accommodations to pregnant employees. Both were signed into law in December 2022.

The regulations aim to broaden protections for women, ensuring that pregnant and nursing mothers do not become targets of workplace discrimination. With new legislation to navigate, employers must familiarize themselves with the nuances of each law and take steps to ensure compliance.


Codified protections for nursing employees

The PUMP Act mandates that all companies — regardless of size — provide employees with time and a private space to express milk at work for up to a year after the birth of a child. The law was enacted on December 29, 2022. Its enforcement provisions, which allow workers to sue employers violating the law, followed shortly after, on April 28, 2023, with a few industry-specific exceptions.

The PUMP Act expands protections granted to nursing mothers under the Fair Labor Standards Act. While the previous Break Time for Nursing Mothers Act only covered non-exempt workers, the PUMP Act extends protections to millions of salaried exempt members of the workforce.

Under the new law, employers must provide reasonable break time to express milk, and allocate a private place, shielded from view, where employees can express milk. It cannot be a bathroom, but there is substantial flexibility beyond this. The space must be functional for pumping, and can be as simple as a reserved conference room available as needed or a dedicated cubicle shielded from view with a curtain or partition that ensures privacy.

The law applies to all employers.  In narrow cases, certain smaller employers with fewer than 50 employees can establish that compliance provisions  would cause an undue hardship. As such, workplaces of all sizes should have a plan to accommodate nursing mothers, irrespective of whether they currently employ pregnant or nursing workers.

Companies that fail to meet these standards could face lawsuits from their employees. Those who are not given adequate time and space to pump can file a complaint with the U.S. Department of Labor. In addition, workers harmed by their employer’s non-compliance can seek the legal and equitable remedies available under the FLSA.   Remedies can include reinstatement, promotion, payment of lost wages, or additional liquidated or compensatory damages, and make-whole relief for any economic losses suffered as a result of the violation.


Enhanced accommodations during pregnancy

Like the PUMP Act, lawmakers introduced the PWFA to fill gaps in existing legislation. While the Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities, and the Pregnancy Discrimination Act (PDA) bars discrimination based on pregnancy, childbirth, or related medical conditions, the law previously granted few explicit protections for pregnant workers in need of accommodations.

PWFA went into effect on June 27, 2023, and applies to any company with 15 or more employees. Under PWFA, employers must offer accommodations that support workers with limitations linked to pregnancy, childbirth and related conditions unless the organization can prove that doing so would constitute an undue burden.

The possible interpretations of PWFA are broad. The U.S. Equal Employment Opportunity Commission (EEOC) is expected to issue final regulations to help employers understand its implications. However, the EEOC proposed rule provides specific examples of possible reasonable accommodations, and those that would likely deemed reasonable in virtually all cases.   These accommodations include, but are not limited to, allowing employees to carry water and drink, as needed; allowing an employee additional restroom breaks; allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and allowing an employee breaks, as needed, to eat and drink.

Exactly what form accommodations take will depend on the individual employee’s needs, and organizations cannot dictate which accommodations they provide. Instead, the law calls for an interactive process whereby workers and employers discuss the employee’s known limitations and potential accommodations. The PWFA also contains anti-retaliation language. This stipulates that companies can’t take adverse actions against employees based on their request for accommodations.


Adapting to new regulations

Much of the legislation in the PWFA and the PUMP Act is aimed at codifying protections that previously existed within a narrower context. As a result, some companies will only need to make minimal adjustments to their established procedures. Many have likely been providing a lactation room to nursing employees for over a decade under the Break Time for Nursing Mothers Act.

That said, organizations should review their policies and verify that they comply with the legislation. Companies can anticipate new requests for accommodations, particularly under the PWFA. To prepare for this, employers should have a designated procedure in place to respond to requests. Organizations should also train supervisors to navigate this process effectively. Often, managers will be the first to field requests and grievances.

Lastly, employers must be aware of regional and local ordinances. The federal legislation does not negate state and city laws with more robust provisions for pregnant and nursing mothers.

The PUMP Act and the PWFA clear the way for a safer, fairer workplace for pregnant and nursing employees. Employers who haven’t taken steps to comply should revisit their policies and practices immediately to verify they are granting the appropriate accommodations.

In addition, companies need to ensure that both their leadership teams and front-line supervisors understand the ramifications of the new legislation. By reinforcing awareness of these laws at every level of the organization, companies can create an environment that not only meets its legal obligations but champions the rights and needs of its workforce.


Patrice Arend is a partner in the Detroit area office of Taft.

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