Employers should review their policies and practices regarding nursing and pregnant employees in light of the recently signed Consolidated Appropriations Act, 2023 signed into law at the end of 2022.
Under the PWFA, employers must engage in an interactive process with affected employees and applicants and provide reasonable accommodations even for a temporary period (unless those accommodations would cause an undue hardship). The terms “undue hardship” and “interactive process” have the same definitions as they do in the ADA.
Notably, an employer may not require paid or unpaid leave as an accommodation if another reasonable accommodation can be provided. The EEOC plans to issue regulations by the end of the 2023 clarifying other types of reasonable accommodations under the PWFA. PWFA enforcement procedures mirror those of other Title VII proceedings, meaning affected employees or applicants can file charges for alleged violations with the EEOC or state or local fair employment agencies. An employer is prohibited from taking any adverse action or engaging in retaliation against an employee who attempts to use this law.
Effective immediately, employers covered by the Fair Labor Standards Act (FLSA) must provide reasonable break time and a private space (that is not a bathroom) for exempt and non-exempt employees to express breastmilk. This amendment supplements the 2010 Break Time for Mothers law, which applied only to non-exempt employees. The new law also clarifies that a pumping break need not be paid, unless it is taken concurrently with a paid break, or the employee is not actually relieved from duty. Like the 2010 law, the PUMP Act exempts employers with fewer than 50 employees, if the employer can show that the accommodation causes an undue hardship to the business.
Enforcement procedures under the PUMP Act are somewhat unique. If an employee believes their PUMP Act rights have been violated, they must notify their employer, who then has 10 days to remedy the alleged violation before any additional legal action can be taken. If the alleged violation is not sufficiently addressed, the employee may pursue all remedies available under the FLSA, including unpaid wages, reinstatement, and liquidated damages.