Labor & Employment Law Alert

Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act (“PWFA”) was signed into law by President Biden on December 29, 2022 and is effective June 27, 2023.  The Equal Employment Opportunity Commission (EEOC) notes the PWFA’s purpose is to provide “reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an ‘undue hardship.’” Although pregnancy discrimination is already prohibited by the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), the PWFA requires employers to provide reasonable accommodations to employees with certain disabilities related to pregnancy, and also provides coverage for pregnancy-related conditions that may not be considered a disability under the ADA.  It is noteworthy that the PWFA mandates accommodations only and does not replace other federal, state or local laws that provide more protections to workers affected by pregnancy, childbirth, or other related medical conditions. Here are the key provisions from the PWFA:

  • Covers private and public sector employers with at least 15 employees.
  • Prohibited Acts:
    • Requiring an employee to accept an accommodation without engaging in a discussion about the accommodation with the worker (also known as “interactive process”);
    • Denying employment opportunities to a qualified employee or applicant based on that person's need for a reasonable accommodation;
    • Requiring an employee to take paid or unpaid leave if another reasonable accommodation exists that would allow the employee to continue working;
    • Retaliating against employees who report or oppose unlawful discrimination under the PWFA or participate in a PWFA proceeding (such as an investigation); or
    • Interfering with an employee’s rights under the PWFA.
  • The PWFA and the ADA share the same definition for reasonable accommodation.
  • The PFWA does not state what may or may not be a reasonable accommodation, but instead, directs the EEOC to implement regulations to “carry out” its provisions, including examples of reasonable accommodations. Those regulations are to be issued within one year of the PWFA’s enactment.
  • In the meantime, the EEOC notes that examples of reasonable accommodations can include: the ability to sit or drink water; receive closer parking; have flexible hours; and receive appropriately sized uniforms and safety apparel. Additional examples can be found here.
  • Charges under the PWFA will start being accepted on June 27, 2023. For the EEOC to accept a charge under the PWFA, the conduct in question must have occurred on or before June 27, 2023.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP)

The PUMP Act, which amends the Fair Labor Standards Act (FLSA), was signed into law on December 29, 2022, and took effect April 28, 2023. The PUMP Act requires covered employers to provide nursing employees with reasonable break time to express breast milk for the employee’s child for up to one year after the child’s birth. An employer may not deny a covered employee a needed break to pump. Further, covered employers must provide qualified employees with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” If the space is not solely dedicated for employees to pump, the space must be available when needed by the employee in order to meet the statutory requirement. Thus, a space that is created temporarily when an employee needs to pump is sufficient as long as the space is shielded from view and free from any intrusion from co-workers or the public. The PUMP Act does not preempt state laws that provide greater protections to nursing employees.

Here are the key takeaways:

  • All employers covered by the FLSA are also subject the PUMP Act, except that an employer with fewer than 50 employees may be exempt if it can show compliance with the PUMP Act would cause undue hardship. All employees of a covered employer, regardless of location, are counted when determining whether the employer may be exempted.
  • If an employee is expressing breastmilk during break time, they must either 1) be completely relieved from duty; or 2) be paid for the break time. If an employer provides paid breaks, an employee who uses their break time to pump must be compensated in the same way that other employees are compensated for break time.
  • Factors to be considered when determining the reasonable break time for an employee to express breast milk include: the needs of the nursing employee and their child; the location of the space where the employees can express breast milk; and the steps necessary to start the pumping process.
  • Employees who don’t physically work at the office are eligible to take pump breaks on the same basis as other employees. Telework employees, however, must be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.

Additional information about the PUMP Act can be found here.

Bottom line

There are key changes concerning rights of pregnant and lactating employees. Employers should review existing policies to make sure they are in compliance with the PUMP Act and the PWFA.  Employers should also ensure their supervisors and HR personnel are well versed on the requirements of these new laws.


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