Agencies are required to provide a private area other than the bathroom where an employee can express breast milk. Image: RandomMoment/Shutterstock.com
President Biden signed the Fiscal Year 2023 Omnibus Spending Bill in late 2022, which featured two new laws set to go into effect in 2023: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) Act. Both pieces of legislation create a new class of qualifying employees who, until now, were not entitled to the reasonable accommodation process afforded by existing laws.
Specifically, set to go into effect on June 27, 2023, the PWFA requires employers to offer reasonable accommodations for qualifying federal, private, and public sector employees with known limitations due to pregnancy, childbirth, or other related medical problems outlined under the Act. Employers, federal agencies, and other labor organizations with more than 15 employees must comply with the new rules unless doing so would place a demonstrated unreasonable burden on the business.
Additionally, the Act requires the EEOC to promulgate regulations for implementing the statute within one year of its enactment. While the EEOC has not yet indicated whether it will do so, it has addressed some frequently asked questions (FAQs) about the Act.
A summary of some of the PWFA’s and PUMP’s key features is provided below, prior to their effective dates.
What Is the Pregnant Workers Fairness Act?
The PWFA requires agencies to make reasonable accommodations for a qualified worker’s recognized limitations brought on by pregnancy, childbirth, or other related medical condition(s), similar to the Americans with Disabilities Act (“ADA”), unless doing so would put an unreasonable burden on their operation. The PWFA employs the ADA’s framework for the interactive process of determining a reasonable accommodation. According to the PWFA, an agency or employer cannot require an employee to take paid or unpaid leave if an alternative reasonable accommodation can be provided.
A key difference, however, is in the definition of a qualified employee. Under the PWFA and the ADA, a qualified employee is any employee who can perform the essential functions of their job with or without reasonable accommodation. However, the PWFA goes further, expanding this definition to include employees who cannot perform the essential functions of their job, so long as the following conditions are met: (a) the inability to perform the essential function is temporary; (b) it could be performed in the near future; and (c) the inability to perform the essential function can be reasonably accommodated.
Furthermore, the PWFA establishes a cause of action against agencies that deny employment opportunities based on the need to make these reasonable accommodations or who take any adverse action against a qualifying employee requesting reasonable accommodations.
Prior to this change, the Pregnancy Discrimination Act only required organizations and employers to provide reasonable accommodations for pregnant workers in certain circumstances, such as when a worker’s pregnancy, childbirth, or related medical condition qualified as a disability under the Americans with Disabilities Act (ADA), or when reasonable accommodations were already provided for other similarly situated, non-pregnant employees. The PWFA distinguishes and clearly establishes an agency’s obligations to accommodate qualifying federal employees and applicants, regardless of their accommodation practices pursuant to the ADA, Worker’s Compensation, or other related laws. This is consistent with trends in many states that require accommodations for pregnant employees.
What Qualifies as Reasonable Accommodation?
The phrase “reasonable accommodation” in the statute is similar to the term “disability accommodation” in the Americans with Disabilities Act (ADA), which refers to a modification or adjustment to a job or the workplace that gives an employee with a disability an equal opportunity to perform a job.
While accommodations are usually determined through an interactive process between the agency or employer and employee, the PWFA makes no specific mention of what kinds of accommodations would be needed. Rather, the Act mandates that the EEOC “carry out” its obligations by issuing regulations that contain “examples of reasonable accommodations.” These regulations must be issued within one year of the law’s enactment.
What Qualifies as Undue Burden?
Typically, agencies and employers have treated any accommodation of an essential job function as an undue burden on the employee. It remains to be seen how the EEOC will define undue burden in light of the new class of qualified employees. The PWFA suggests an agency or employer can no longer automatically claim an employee’s temporary inability to perform essential job functions creates an undue burden. Without carefully crafted regulations, agencies and employers could see the standard for what constitutes an undue burden become more strictly enforced.
What is the PUMP Act?
The PUMP Act, with a few exceptions, modified the Fair Labor Standards Act (FLSA) and went into effect immediately. For a year following the birth of the child, agencies and employers are required to give employees a suitable break time so they can express breast milk whenever they need to. Additionally, they are required to provide an area other than the bathroom that is shielded from view and free from intrusion where an employee can express breast milk without being seen or disturbed.
While the Affordable Care Act of 2010 amended the FLSA to provide these protections to nonexempt employees, the PUMP Act extends them to all employees, whether exempt or nonexempt. Notably, the PUMP Act does not apply to firms with fewer than 50 employees if certain provisions of the law would impose an unreasonable burden on the employer, or to certain employees of airlines and the travel industry.
Although the PUMP Act reiterates the FLSA principle that time spent to express breast milk is considered “hours worked” if the employee is not totally freed from duty during the length of the break, an agency or employer is not obligated to provide an employee with a supplemental paid break under these modifications. For example, a nonexempt employee who receives two paid breaks a day is not now entitled to four paid breaks. A nonexempt worker must be paid for the whole break if they continue working or are interrupted during it. Exempt personnel continue to receive their full weekly compensation, regardless of any breaks.
Key Takeaways
Due to state law requirements, many agencies and employers may already include pregnancy as a disability in their disability accommodation policies and procedures. However, it is critical to review existing policies and procedures in order to account for the intricacies of the new federal law, especially the interactive process framework. Additionally, agencies should examine their lactation policies to make sure they adhere to the PUMP Act and state-specific laws as well.
Tully Rinckey PLLC has experience assisting federal employees with classification appeals and is ready to help you today. Mathew B. Tully is a founding partner of the firm and concentrates his practice on representing federal government employees and military personnel. To schedule a consultation with one of the firm’s federal employment law attorneys call (888)-529-4543 or email info@tullylegal.com.
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