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New rules for employers on pregnant, nursing workers

SHERRY KARABIN
Legal News Reporter

Published: April 14, 2023

Employment law attorneys are advising employers and human resources professionals to review company policies and procedures that cover workers and job applicants who are pregnant, nursing or experiencing related conditions.
This after changes to the rules governing workplace accommodations for these groups were signed into law late last year by President Joe Biden as part of the Consolidated Appropriations Act, 2023.
The first law, known as the PUMP (Providing Urgent Maternal Protections for Nursing Mothers) Act, took effect on Dec. 29, 2022, the day the legislation was signed.
It requires all employers to provide reasonable break time and a private place for employees to pump or express milk for a nursing child for up to one year after the birth.
The lactation area cannot be located in a public or private bathroom and must be shielded from intrusion and the view of coworkers and the public.  
As Vorys, Sater, Seymour and Pease Partner Ashley M. Manfull explains, the Fair Labor Standards Act (FLSA) already required employers to provide these rights to non-exempt hourly workers, now they must do so for all employees regardless of their exemption status.
“Businesses with 50 employees or less can avoid complying with the new law if the employer can demonstrate that the rule would pose an undue hardship on the company, due to a major difficulty or expense,” said Manfull. “This exception should be used sparingly and only when there is clear evidence of a true hardship.”
Crewmembers of air carriers are not covered under the law and there are certain exceptions for employees of rail carriers and motor coach services as well.
Roetzel & Andress Shareholder Karen Adinolfi said while the PUMP Act does not represent a radical change to the law, it’s important to make sure supervisors are aware of the new rules.
“Employers may already have provided a time and space for lactation,” said Adinolfi, a member of the firm’s Employment Services Group. “If this is an entirely new situation in your workplace, you may need to update your policy and provide some training so that supervisors are aware that nursing mothers are entitled to lactation breaks in a private space.”
“The lactating area does not have to be permanent, the location only needs to be set aside if you have a nursing mother,” said Manfull.
In the case of non-exempt employees, the break time does not have to be paid, but employers can’t ask exempt workers to take unpaid time, said Manfull, a member of the labor and employment group at Vorys.
“Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period,” said Adinolfi.
Remedies are available to workers whose rights are violated under the FLSA.
“The PUMP Act creates a private right of action for employees who are denied breaks, not provided a qualifying space for expressing, or not paid for the break as outlined in the Act, though the private right of action is not effective until April 28, 2023,” said Adinolfi. “Remedies are back pay, front pay, liquidated damages, attorneys’ fees and costs. With some exceptions, the law requires employees to provide notice of an alleged violation of the PUMP Act to the employer and give the employer a 10-day cure period before filing a suit.”
In addition to the PUMP Act, employers with at least 15 employees will soon be required to afford reasonable accommodations to workers and job applicants with “known limitations” related to pregnancy, childbirth or other linked conditions under the Pregnant Workers Fairness Act (PWFA), which takes effect on June 27, 2023.
“The PWFA clarifies employers’ obligations to accommodate pregnant workers under the ADA (Americans with Disabilities Act),” said Adinolfi. “Prior to this law, employers were only required to provide accommodations under the Pregnancy Discrimination Act in certain circumstances when a similar accommodation was made to a non-pregnant worker who was similarly situated in his or her ability to work.
“Now the law takes a much broader approach, as it requires accommodation without reference to whether the employer has provided a similar accommodation to others.”
In addition to public and private sector employers with at least 15 employees, the law applies to Congress, federal agencies, employment agencies and labor organizations.
While the ADA does mandate that a worker be able to perform the “essential functions” of the job, with or without an accommodation, Manfull said the PWFA temporarily allows employees and job applicants with “known limitations” related to pregnancy, childbirth or other linked conditions to forego a specific duty or duties in certain circumstances as a “reasonable accommodation.”
“For example, employers could be required to let an employee sit for a period of time, work flexible hours, take additional bathroom breaks or maybe refrain from strenuous activities that are normally part of the job description,” said Manfull.
As is the case with the ADA, employers must undergo an interactive process to determine if a “reasonable accommodation” can be provided that would not create an “undue hardship” for the business.
In addition, under the new law, a business owner cannot force a worker to take paid or unpaid leave if a reasonable accommodation can be afforded or deny a job or other employment opportunity to an applicant based on the individual’s need for a reasonable accommodation.
Employers are prohibited from retaliating against any individual for reporting or opposing discrimination under the PWFA or participating in a PWFA investigation or other proceeding.
The new law will be enforced by the EEOC (Equal Employment Opportunity Commission), which has yet to issue specific guidance on the potential accommodations available to employees or applicants with “known limitations” related to pregnancy, childbirth or other associated conditions.
In the meantime, attorneys are advising employers to be prepared to accommodate pregnant employees and applicants with conditions ranging from preeclampsia (a high blood pressure disorder that can occur during pregnancy) to postpartum depression, whether or not those conditions meet the definition of a disability under the ADA.
“The law is not retroactive, but the EEOC will begin accepting charges once it takes effect,” said Manfull.
The penalties for employers who violate the PWFA are identical to those of Title VII, including compensatory and punitive damages and attorneys’ fees, available to a prevailing plaintiff.
“The new law affords this group of employees and job applicants specific rights and it’s important that employers understand what is required and adhere to the law, update policies and provide any necessary supervisor training to avoid potential problems,” said Adinolfi.


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