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Biden Signs into Law New Protections for Pregnant and Nursing Employees

Labor & Employment Publications

On December 29, 2022, President Biden signed the 2023 Omnibus Spending Bill into law. Buried in the legislation were two new laws providing additional protection for pregnant and nursing employees in the workplace: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”). The first requires employers to provide reasonable accommodation for medical conditions related to pregnancy and childbirth, while the second expands the rights of nursing parents to require that both hourly and salaried employees receive break time and a private place to pump at work. Both Acts enjoyed bipartisan support.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act follows in the footsteps of the Americans with Disabilities Act of 1990 (“ADA”) and requires employers to provide reasonable accommodations for medical conditions related to pregnancy and childbirth. Currently, federal law only requires those accommodations if employers also give them to workers with injuries or medical conditions. The PWFA mandates that employers cannot “require employees to take paid or unpaid leave if another reasonable accommodation can be provided.” Because the PWFA adopts the ADA’s definition of “reasonable accommodation” and “undue hardship,” the process for determining an appropriate reasonable accommodation will be the same as under the ADA. The new rule also prohibits companies from discriminating against job applicants or denying them jobs altogether on the basis of pregnancy. Like the ADA, the statute requires employers to engage in an “interactive process” with employees to identify appropriate accommodations.

The PWFA’s requirements are nothing new for Illinois employers, as the Illinois Human Rights Act already requires employers to provide reasonable accommodations for pregnancy and childbirth. However, the PWFA will create a new federal cause of action for employees who claim that they were improperly denied such accommodations.

The PWFA will go into effect in June 2023.

The PUMP Act

The PUMP Act expands upon the requirements of the Break Time for Nursing Mothers Act (passed in 2010 as part of the Affordable Care Act) which, in turn, amended the Fair Labor Standards Act of 1938 (the “FLSA”) to require employers to provide a nursing employee reasonable break time to express breast milk for one year after the birth of the child and requires that employers provide a place for an employee to express breast milk. While the Break Time for Nursing Mothers Act only applied to hourly workers, the PUMP Act covers workers exempt from overtime, such as teachers or nurses. Break time under the PUMP Act may be unpaid, but only if the employee is completely relieved of duty during the break. The PUMP Act also creates a previously absent private right of action for employees to sue employers who have violated the above provisions, with remedies that include employment, reinstatement, promotion, the payment of wages lost and an additional equal amount as liquidated damages, as well as attorney’s fees to be paid by the defendant. The PUMP Act bill includes exemptions for the airline and rail industries, and an undue hardship exemption for employers with fewer than 50 employees.

Like the PWFA, the Pump Act does not preempt any state law that provides additional protection for nursing employees. In many states, like Illinois, employers are already required to provide reasonable paid breaks in a suitable, private location for nursing for the first year after childbirth. Under Illinois law, break time to express milk may run concurrently with any break time already provided to the employee, but an employer may not reduce an employee’s compensation for time used to express milk.

The PUMP Act went into effect as of its signing on December 29, 2022, and its enforcement provision goes into effect on April 28, 2023.

Please contact a Franczek attorney with any questions about these new laws.