Author: Cody Bengtson
Two new federal laws designed to support and accommodate pregnant and nursing employees are now in effect. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) became law on Dec. 29, 2022,1 and more recently, the Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023.2 Both laws require employers to take action to ensure compliance and allow for legal recourse for noncompliance. Importantly, both Acts offer opportunity for education and communication with managers and employees.
Key provisions of the Pregnant Workers Fairness Act
In accordance with the PWFA, employers with 15 or more employees must:
- Provide reasonable accommodation for pregnant employees and those experiencing limitations related to pregnancy, childbirth, or related medical conditions.
- Prohibit any employment practices that discriminate against the affected individuals listed above.
- Not refuse reasonable accommodations, force employees to accept particular accommodations that weren't discussed in an "interactive process" discussion, deny employment opportunities, not require employees to take leave, or punish employees in any capacity related to the request.
Key provisions of the Providing Urgent Maternal Protections for Nursing Mothers Act
The PUMP Act builds upon the Break Time for Nursing Mothers Act of 2010, which mandated reasonable break times and private spaces for nursing employees to express breast milk. The PUMP Act addresses the shortcomings of the previous law by extending protections to additional workers and allowing legal recourse for non-compliance. Employers must:
- Provide nursing mothers reasonable break time to express breast milk for a nursing child up to one year after the child's birth — for each time such employee has the need to express milk.
- Not deny a covered employee such a break. Under the Fair Labor and Standards Act (FLSA), the employee using break time to express milk must
- Be completely relieved from duty or be paid for the break time.
- Be compensated for break time in the same way that other employees are compensated for break time.
- Provide a private space, excluding bathrooms, for employees to express breast milk. This space should be shielded from view, free from intrusion and functional, allowing safe milk storage and access to electricity and nearby facilities for hygiene purposes. Employers with fewer than 50 employees may be exempt if compliance presents an undue hardship.
- Provide employees who telework or work remotely the same provisions.
- Not discharge or in any other manner discriminate against any employee for practicing or proceeding with any protected activity under the PUMP Act.
Certain exemptions may exist for employees of airlines, railroads, and motor coach carriers from the nursing employee protections under the FLSA
Policy review, communication and training can help ensure compliance
With both Acts in effect, consider the following steps to ensure compliance.
Review current policies
Conduct a thorough review of your existing policies and procedures. Examples include break time polices, Americans with Disabilities Act (ADA) accommodations policy, Family and Medical Leave Act (FMLA), Equal Employment Opportunity (EEO) statements, dress code and discrimination policies.
Review the physical workspace
Conduct a comprehensive review of the physical workspace to ensure it meets the requirements of the PUMP Act, including providing private and functional spaces for expressing breast milk. The spaces must not be a bathroom and must be shielded from view and free from intrusion. Assess existing lactation rooms, make any necessary improvements or modifications and ensure accessibility for nursing employees. Ensure regular maintenance and availability of necessary amenities such as proper storage and hygiene facilities.
Communicate the change to employees
Proactively communicate the provisions of the PWFA and PUMP Act to all employees. Leverage channels such as company-wide emails, in-person or virtual/remote information sessions, or policy updates and distribution of an updated employee handbook. Share clear and concise explanations of the new rights and protections under both Acts, along with details on how employees can seek accommodations or report non-compliance. At a minimum, update and display the FLSA and "Know Your Rights" posters accordingly.
Train managers
Managers play a crucial role in implementing and enforcing both Acts in the workplace. Conduct training sessions to educate managers on the new laws, their implications and how the Acts may impact current practices. Train managers to recognize and respond to accommodation requests, how to ensure a discrimination- and harassment-free workplace, and how to mitigate potential discrimination or retaliation issues.
Continue to understand workforce and organizational demographics
Gather and analyze data regarding your workforce and organizational demographics, paying particular attention to the needs of pregnant and nursing parents. Understand the composition of your workforce to identify potential challenges and areas requiring accommodations. Proactive review will clarify how the Acts apply to your workforce.
Gallagher can help
Contact Gallagher to learn more about how we can help your organization assess your level of compliance and steps to respond to the PFWA and PUMP Acts, and other applicable regulations. Contact us to begin a conversation.
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