By Hillary Pettegrew, Esq.
Are you aware of the new federal protections that impact pregnant and breastfeeding employees? The Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) will be enforcing new protections and require employers to make workplace adjustments.
PWFA Requirements
The Pregnant Workers Fairness Act (PWFA)1 took effect in June 2023 and mandates “reasonable accommodations” for pregnancy, childbirth, and related medical conditions for employers with more than 15 employees, regardless of whether a disability exists. The only employers exempt must meet the “undue hardship” standard by showing an accommodation would create significant difficulty or expense. Employers cannot require pregnant employees to take paid or unpaid leave if another reasonable accommodation is available.
Potential accommodations include:
There is a significant difference from the accommodations under the Americans with Disabilities Act (ADA). Where normally HR would take the lead under the ADA, in this case, immediate supervisors and employees must work together to find appropriate accommodations. The EEOC, which enforces the PWFA, expects the supervisor to handle most accommodation requests, which makes proper training on the new obligations essential.
"The EEOC, which enforces the PWFA, expects the supervisor to handle most accommodation requests, which makes proper training on the new obligations essential." -Hillary Pettegrew
"Speak with legal counsel before updating policies and practices. They can help you satisfy all applicable legal requirements. While consulting with counsel, update handbooks and other documents to reflect the new requirements." -Hillary Pettegrew
PUMP Act Requirements
The Fair Labor Standards Act already required break times for nonexempt (generally hourly) nursing employees. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)2 extends these protections to exempt (generally salaried) employees. For one year after childbirth, employers must provide:
Reasonable break times—varying in frequency and length depending on a person’s needs—for expressing milk
A private, non-bathroom space for milk expression
Exempt employees must receive full salaries during breaks, while nonexempt employees can have unpaid breaks unless otherwise required by law (such as a state statute or local ordinance). The Department of Labor’s Wage & Hour Division, which enforces the PUMP Act, says employers with fewer than 50 employees are not subject to3 break requirements if providing them would create an undue hardship. Hardships are determined by comparing the difficulty or cost of compliance to a particular employer’s “size, financial resources, nature, and structure.”
PREPARE FOR COMPLIANCE
To comply:
Speak with legal counsel before updating policies and practices. They can help you satisfy all applicable legal requirements. While consulting with counsel, update handbooks and other documents to reflect the new requirements.
Review and possibly expand your accommodations process.
Train managers and supervisors so they understand the basic requirements and their responsibilities under the new laws.
Evaluate and modify workspaces for nursing employees.
Publicize the new policies to your campus community, including procedures for requesting pregnancy accommodations and nursing breaks.
Remember Other Mandates
The 2024 Title IX regulations4 create additional requirements for many colleges and universities. They contain separate prohibitions against discrimination based on pregnancy or pregnancy-related conditions and mandate various accommodations for nursing mothers (students and employees).
Courts have enjoined the 2024 regulations in some states and against certain institutions. If your institution is still subject to them, be sure you comply with the related Title IX regulations as well as with the PWFA and PUMP Act.
Bottom Line
By proactively understanding and implementing these protections, leaders can create a more inclusive and supportive workplace and can also mitigate potential legal risks.
1 https://www.congress.gov/bill/117th-congress/senate-bill/1486
2 https://www.congress.gov/bill/117th-congress/senate-bill/1658
3 https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa
4 https://www.federalregister.gov/documents/2024/04/29/2024-07915/nondiscriminationon-the-basis-of-sex-in-education-programs-or-activities-receiving-federal