May 02, 2023

New Employment Protections for New and Expecting Mothers

Written by Rebecca Tipton, SHRM-SCP

BMSS HR Advisory
Putting the “Resource” in Human Resource Consulting

With new legislation protecting new and expecting mothers’ employment, employers need to be cognizant of their responsibilities for employees who are either pregnant or who are lactating following recent childbirth. The most recent federal acts passed are the Pregnant Workers’ Fairness Act and the Providing Urgent Maternal Protections, more commonly referred to as the PUMP Act. However, other federal and state laws affect these workers’ rights as well, and companies need to be aware of how they are affected so that they can be sure to provide a welcoming and compliant work environment.

Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act was enacted at the very end of 2022 and becomes effective on June 27, 2023. It is designed to apply to all employers with at least 15 employees and, at first glance, appears similar to the Pregnancy Discrimination Act (PDA) of 1978. However, it actually just adds more protections for pregnant workers than were previously available under the PDA. While the PDA prohibits discrimination against pregnant applicants or employees and requires employers to treat them substantially the same as a similarly situated employee or candidate with a short-term disability, the Pregnant Workers’ Fairness Act formally requires covered employers to provide reasonable accommodations for any known limitations related to pregnancy, childbirth, or related medical conditions. As with the Americans with Disabilities Act (ADA), the employer does not have to provide any accommodation that can be demonstrated to have an undue hardship on the company but does need to participate in the interactive process with the affected worker to identify whether a reasonable accommodation exists that can be implemented. It should be noted that the interactive process is important as the EEOC specifically advises that employers are not to require an employee to accept a reasonable accommodation without that interactive process between the worker and employer beforehand nor are they allowed to require an affected employee to take leave as their accommodation if another reasonable accommodation exists that would allow the employee to continue to work.

Providing Urgent Maternal Protections Act (PUMP Act)

The PUMP Act was also enacted at the very end of 2022, but it became effective on April 28, 2023, and is designed to apply to any employer who is also covered by the Fair Labor Standards Act (FLSA). However, if an employer has less than 50 employees and can demonstrate how compliance would be an undue hardship, they can claim exemption, but it would be wise to tread carefully with claiming this exemption. Much like the PWFA, the previously implemented amendments to the FLSA from the Patient Protection and Affordable Care Act of 2010 provided similar protections, but the PUMP Act serves to formalize and clarify the rights afforded for nursing employees and remove previous exemptions that existed for certain employees, such as teachers, nurses, and farmworkers. Under PUMP, employers are required to provide nursing employees with reasonable break time and a private space free from intrusion for the purpose of expressing milk for at least one year following childbirth. The break time does not have to be paid, provided that it is duty-free and is not taken during another break that is typically paid by the employer, nor does the space provided necessarily have to be dedicated for the sole purpose of lactation as long as it is readily available when the employee needs to use it. Additionally, if an employee feels that the employer is not in compliance with the act, the employee is required to first report the issue directly to the employer and give them 10 days to rectify the situation before filing an official complaint with the Department of Labor.

Employers should also be aware that the PWFA and PUMP Act are not the first or only acts to introduce protections for pregnant applicants or employees or those who have recently given birth. In addition to the federal protections previously mentioned under the Pregnancy Discrimination Act and Patient Protection and Affordable Care Act, employees covered by the Family and Medical Leave Act also have the right to protected leave for up to 12 weeks annually following the birth of a child or for related medical conditions. There are also state-based laws with protections for such employees. In fact, state laws for some form of protection against pregnancy discrimination exist in every state with the exception of Alabama, North Carolina, Indiana, and South Dakota. Similarly, almost all states have a state law providing for some form of pregnancy accommodation with the exceptions of Florida and Wyoming. Additionally, certain states and districts have laws protecting leave for pregnancy loss, such as Illinois and the District of Columbia, while certain states have protected pregnancy disability leave and/or paid family leave programs, such as California, Colorado, New York, and many others. Therefore, companies with employees in multiple states should be careful to take note of the applicable legislation based on where each employee works. Information regarding state-based employee protections can typically be found on the state’s labor department website, but if you need help ensuring your organization is in compliance or updating policies to accommodate changes in employment regulations, BMSS HR Services is here to help. Contact us today at (833) CPA-BMSS.