Employers get a holiday surprise: New employment laws tucked in the spending bill

Tucked deep in the 2023 federal Omnibus spending bill, passed on December 23, 2022 and signed by President Joe Biden the same day, were two surprise employment provisions that increase protections for pregnant and nursing employees.  Both provisions had support across party lines as well as from a broad coalition of business and civil rights advocacy groups. 

The Pregnant Workers Fairness Act 

First introduced in the Senate in 2012, the Pregnant Workers Fairness Act (PWFA) finally garnered enough support for passage in the waning days of 2022. The PWFA affirmatively requires employers to make “reasonable” accommodations for employees affected by pregnancy or childbirth, unless accommodations impose an “undue hardship.” The new law pushes protections a step beyond the existing Pregnancy Discrimination Act, which bars pregnancy discrimination, but does not require workplace accommodations for pregnancy and related conditions. 

The PWFA is modeled on the Americans with Disabilities Act, which requires reasonable accommodations for disabilities, and is similar to laws in over 30 state that require accommodation of pregnant employees.

Under the PWFA, employees who are pregnant, have pregnancy-related conditions, or have recently given birth are eligible for workplace accommodations that allow them to perform the essential functions of the job. Like the ADA, reasonable accommodations are to be determined by engaging in the interactive process.  Reasonable accommodations might include assigning light duty, permitting more frequent bathroom breaks or allowing a pregnant worker to drink water at her workstation.  As many employers have experienced recently, a reasonable accommodation may also include remote work. Under the PWFA, like the ADA, accommodations are typically not considered reasonable if they eliminate an essential function of the job or require creating a new job.

Providing Urgent Maternal Protections for Nursing Mothers Act

Also nestled in the Omnibus bill is the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”).  This act, which expands protection for workplace lactation accommodations, was approved in a 92-5 Senate vote.

As employers know, federal law already requires employers to provide reasonable break time and a clean space to express milk. However, the existing requirements passed as part of the federal Affordable Care Act in 2010 exclude most salaried employees.  

The PUMP Act now extends these rights to all breastfeeding employees for the first year of the baby’s life. In another twist that is sure to generate litigation, the PUMP Act also provides that, “time spent to express breast milk must be considered hours worked if the employee is also working.”

In voicing its support for the PUMP Act, the U.S. Chamber of Commerce noted that, “[t]he bill would improve upon the current law in several key areas:

• Employers would be allowed 10 days to improve space allocated for nursing mothers before employees could proceed with seeking relief from the courts. This provision would assure that more employees can get the accommodations they need in a timely manner rather than triggering a drawn out, costly, and uncertain litigation process.
• The bill protects small businesses by not applying to employers with less than 50 employees where compliance would present an undue hardship.”

Employer Takeaways

The PWFA is effective 180 days after signing, which will be June 23, 2023. The PUMP Act is effective immediately.  

As with any new employment law requirements, employers should:

• Watch for guidance. The EEOC, which will administer the PWFA, and the DOL, which will enforce the PUMP Act, will each likely issue fact sheets and other guidance advising employers on the scope and best practices under these new laws. 
• Update policies and procedures. The new laws are timely- coming at year-end when many employers are updating handbooks and planning for 2023.  To ensure compliance with the new provisions, employers should consider these new laws as they update accommodation, lactation, and timekeeping policies and procedures. 
• Train supervisors, managers, and HR.  Perhaps the most critical aspect, supervisors, managers, and human resource professionals at all levels need to become acquainted with the new requirements. Requests for accommodations or lactation time can lead to charges and claims when front-line supervisors and others do not understand compliance requirements. Supervisors who are trained and understand the new provisions and how to respond can reduce the risk of complaints, claims, and possible litigation.

December proved to be a month of surprising consensus on the employment law front. These new laws protecting pregnancy and lactation follow the Respect for Marriage Act and the Speak Out Act (covered here), both passed with bi-partisan support earlier in the month.  With a new Congress taking their seats next week, we’ll see soon what awaits employers in 2023.  

For guidance on implementing and complying with these new employment laws and other 2023 employment law developments, contact a member of the McDonald Hopkins Labor & Employment Team.