PREGNANT & NURSING EMPLOYEE RIGHTS EXPANDED
In the recent Omnibus Spending Bill passed by Congress and signed into law by President Biden, two measures were included aimed at providing additional workplace protections for pregnant employees.
Pregnant Workers Fairness Act (PWFA)
As if we do not already have enough acronyms to know, the “PWFA” or the Pregnant Workers Fairness Act has been enacted. It applies to employers with 15 or more employees and provides the same type of protections set out in the Americans with Disabilities Act (ADA) to employees with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions regardless of whether the condition meets the definition of a disability specified in the ADA (a “qualified employee”).
As with the ADA, the PWFA requires an interactive process to identify appropriate reasonable accommodation. While the PWFA adopts the same definitions of “reasonable accommodation” and “undue hardship” as the ADA it does not specify the types of reasonable accommodations that an employer may be required to consider. The Equal Employment Opportunity Commission (EEOC) has been directed to issue regulations and in the meantime has issued FAQs that provide general guidance on the new law as well as examples of possible reasonable accommodations including the following:
- the ability to sit or drink water;
- receiving closer parking;
- having flexible hours;
- receiving appropriately sized uniforms and safety apparel;
- receiving additional break time to use the bathroom, eat, and rest;
- taking leave or time off to recover from childbirth; and
- being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
The PWFA makes it an unlawful employment practice to deny employment opportunities to qualified employees if the denial is based on the need for a reasonable accommodation. Further, an employer may not force an employee to take a leave if another reasonable accommodation can be provided. Finally, the PWFA prohibits retaliating against an employee for requesting or using a reasonable accommodation.
Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”)
The second acronym that we need to learn is the “PUMP Act” or the Providing Urgent Maternal Protections for Nursing Mothers Act which becomes effective on June 27, 2023. This new federal law is not dissimilar to the requirements contained in California Labor Code Section 1030 which requires every California employer provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has a need to express milk.
Like California, the Federal FLSA requires employers to provide unpaid, reasonable break time and a place shielded from view and free from intrusion (not a bathroom) for non-exempt employees to express breast milk up to 1 year after the child’s birth. The PUMP Act expands this requirement to all employees covered under the FLSA including exempt (i.e., salaried) employees and also includes a new anti-retaliation provision. In addition to the existing exemption for employers with 50 or fewer employees if it would impose an undue hardship, there are also new exemptions for air carriers and a limited exemption for rail carriers. The EEOC is also expected to issue regulations on this bill.
Updated Poster 
The Department of Labor (DOL) also released an updated “Employee Rights Under the Fair Labor Standards Act” poster, which contains updated PUMP Act information. The section on “Nursing Mothers” is now called “Pump at Work,” and the reference to employees subject to the overtime requirement has been removed. Contrary to some initial guidance, the DOL website now states that prior versions of the poster are no longer compliant.
Employers should print out and post the April 2023 version of the FLSA poster (or electronically post and/or disseminate the updated posters where permitted and/or required). Employers that utilize the federal all-in-one poster may want to delay purchase of a new poster as the EEOC likely will update the federal “Know Your Rights” poster in June 2023 to reflect the PWFA requirements. In the interim, employers that utilize the federal all-in-one poster can display the updated FLSA poster alongside the all-in-one poster.
NEW FMLA POSTER PUBLISHED BY DEPARTMENT OF LABOR
As has been required for many years, employers with 50 or more employees are covered by the FMLA which, among many other things, requires covered employers to post an FMLA poster in conspicuous locations where employees can readily see the poster by employees and applicants for employment.
Covered employers must also provide the information contained in the poster to each employee, by including the poster and/or its contents in employee handbooks or other written guidance to employees, or by distributing a copy of the poster to each new employee upon hiring. Failure to post may subject an employer to a small penalty.
Recently, the DOL published a new poster, which, other than changing the color, does not provide any new or different information. The existing poster editions are still effective to use.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2023.