Employment Law Lessons: Protecting maternity rights edition

In the flurry of the holidays, employers may have missed two employment provisions addressing pregnancy accommodations and lactation time tucked in the federal Omnibus spending bill signed on December 23, 2022. Now, as employers focus on 2023 compliance obligations, it’s time to dig into these laws and what they mean.

Protecting Maternity Rights

Many may wonder why almost 45 years after the Pregnancy Discrimination Act (PDA) was passed the parameters and protections of that law still need sorting out. While the PDA broadly protects against discrimination on the basis of pregnancy, it does not squarely address certain practical aspects of being pregnant in the workplace, such as whether employers must accommodate pregnant employees or provide pumping time for breastfeeding moms. 

This lack of clarity has contributed to a cycle of recurring claims over obligations to accommodate pregnant employees in the workplace before and after childbirth. Twelve years after the PDA’s passage, the American with Disabilities Act (ADA) ushered in a new framework for workplace accommodations for disabled employees. Yet, questions about pregnancy accommodations have persisted as has the related litigation. 

The final impetus to clarify the PDA may have come from an August 2022 case issued by the 7th Circuit Court of Appeals that once again put a spotlight on the disparity between disability and pregnancy accommodations. In that case, the EEOC challenged an employer program offering light duty accommodations to workers injured on the job, but excluded pregnant employees in need of similar light duty accommodations. Rejecting the EEOC’s pregnancy discrimination claims, the court held that the employer’s neutral reason for providing benefits to those injured on the job but not to pregnant employees – compliance with the state worker’s comp scheme – did not constitute discrimination.

With the new laws, the Pregnant Workers Fairness Act and the PUMP Act, Congress has now clarified accommodation obligations for pregnant employees and strengthened lactation protections for employees returning to work.

The Pregnant Workers Fairness Act 

The Pregnant Workers Fairness Act (PWFA) affirmatively requires employers to make “reasonable” accommodations for employees affected by pregnancy or childbirth, unless accommodations impose an “undue hardship.” 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 – meaning a dialogue between the employer and employee about changes that will help the employee perform their essential job duties. Reasonable accommodations might include assigning light duty, permitting more frequent bathroom breaks, or allowing a pregnant worker to drink water at her workstation. Under the PWFA, 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

The second new law, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), closes another gap in maternity leave protections. While federal law has required that employers provide reasonable break time and a clean space to express milk since 2010, the law excluded most salaried employees from those protections.  

The PUMP Act now extends these rights to all breastfeeding employees for the first year of the baby’s life. As most new moms are skilled at multi-tasking, the PUMP Act also provides that when employees work while expressing breast milk, that time “must be considered hours worked.”

The PUMP Act also makes some broader changes to the current law by allowing employers ten days to improve space allocated for nursing mothers before an employee can seek relief from the courts. Recognizing that the law’s requirements may be challenging for small employers, the requirements do not apply to businesses with under 50 employees where compliance would be an “undue hardship.”

Employer Takeaways

As employers are now implementing 2023 compliance requirements, these new laws must be part of that process. The PUMP Act had immediate effect on December 29, 2022. The PWFA is effective June 29, 2023.   

Employers seeking to comply with these new laws and support maternity and parental rights for their employees should take the following steps:

• Update policies and procedures. Update handbooks and policies to ensure compliance with the new provisions. Policies and procedures that likely require attention include accommodations, lactation time, and timekeeping policies and procedures. 
• Train supervisors, managers, and HR. To follow the laws, supervisors, managers, and human resource professionals at all levels need to know and understand them. To avoid a cycle of complaints and litigation, employers must take the time to train their front-time supervisors and managers on the new requirements and how to appropriately respond to employee requests for pregnancy and lactation accommodations.
• Support pregnant employees and new parents. These new laws and others that support pregnant employees and new parents, such as the FMLA and state leave laws, are important legal protections that secure the ability to work during pregnancy, the right to time off for birth and to bond with a new baby, and the opportunity to return to work while still providing important nourishment for a new child. Beyond the legal obligations, however, employees need to know that they work in an environment where their managers and supervisors respect those rights and employees who exercise them. 

Employers should make this a priority because the EEOC has already made clear that it will. In its Draft Strategic Enforcement Plan for 2023 – 2027 just released on January 10, the EEOC states that an emerging issue it will consider a “priority” is enforcing “violations of the newly enacted Pregnant Workers Fairness Act of 2022.”  

There’s no time like the present for compliance.

For guidance on implementing and complying with these new employment laws and maintaining a supportive work culture within your organization, contact a member of the McDonald Hopkins Labor & Employment Team.