New Protections for Pregnant Women Become Federal Law

On Dec. 29, President Biden signed into law two significant federal protections for pregnant women in the Consolidated Appropriations Act, 2023. In addition to serving as the omnibus spending bill that funds the federal government, the law added the Pregnant Women’s Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act. The PWFA is effective on June 27, 2023, while the PUMP Act goes into effect immediately.  

Pregnant Workers Fairness Act

The PWFA, which applies to employers with 15 or more employees, was modeled on the Americans with Disabilities Act (ADA) and the many existing state pregnancy accommodation laws such as those in New Mexico, Tennessee,  Kentucky, Virginia, Oregon, and Connecticut. Like the ADA, the PWFA requires employers to engage in an interactive process and to make reasonable accommodations. It differs from the ADA, however, in that the ADA requires an employee to suffer from a disability. While some pregnant employees may have concurrent conditions that qualify as a disability, pregnancy itself is not considered a disability under the ADA.  

The PWFA expands an employee’s rights by covering an employee’s and applicant’s limitations related to pregnancy, childbirth, or related medical conditions, which are far broader than a disability. Like the ADA, an employer is not required to provide an accommodation if it can demonstrate that doing so would impose an undue hardship on the operation of the business. The law contemplates that the employer and employee will engage in an ADA-style interactive process to achieve an appropriate accommodation. While a leave of absence may be the appropriate accommodation, an employer cannot require an employee to take leave if another reasonable accommodation can be provided. Employers may not take any adverse action against an employee due to a request or use of a reasonable accommodation. 

An employee is considered qualified if they suffer from an inability to perform an essential function of the job, but: 

  • the inability to perform the function is for a temporary period; 
  • the essential function could be performed in the near future; and 
  • the inability to perform the essential function can be reasonably accommodated.  

The EEOC has been directed to issue regulations to enforce the PWFA no later than one year from enactment. 

PUMP for Nursing Mothers Act

The PUMP Act amends the Fair Labor Standards Act (FLSA) by requiring employers with 50 or more employees to provide reasonable break time in a private, non-bathroom space for an employee to express breast milk for the employee’s nursing child for one year after the child’s birth. Employers are not required to pay employees for this time unless otherwise required by law, but the break time must be considered hours worked if the employee is not completely relieved from duty during the break. Previously, the 2010 Patient Protection and Affordable Care Act amended the FLSA to provide the same requirements for non-exempt employees. The PUMP Act expands this right to cover both exempt and non-exempt employees. 

Employers with fewer than 50 employees may be exempt from the new requirement if they can show it would impose an undue hardship causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. The PUMP Act also provides exemptions for crewmembers of air carriers, train crews of rail carriers, and motorcoach services operators.  

What is FINEOS doing to prepare for the newly passed laws?

To help with these amendments to pregnant women’s rights and nursing mothers, FINEOS Absence management software provides clients with robust management of paid and unpaid absences including coverage of all major federal, state and local leave laws. As with all significant legal changes, FINEOS will be adding the Pregnant Women’s Fairness Act in an upcoming release, and ensuring all clients are updated by the law’s effective date.  

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