by Lana L. Rupprecht, Esq. - AVP Product Compliance
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
February 20, 2023
2023 is off to a good start for pregnant workers. Two federal laws passed at the end of 2022 provide accommodation rights and other protections to pregnant employees. The trend continues full speed among states to pass laws requiring workplace accommodations and other job protections for pregnant employees.
Here we provide a summary of the key points under the new federal laws and an overview of state law requirements. This may feel overwhelming, but we can help, so read on!
NEW FEDERAL PREGNANCY PROTECTIONS
PWFA
The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, continues to receive attention with its recent passage. Among other things, the PWFA will require employers to provide reasonable workplace accommodations for physical or mental conditions associated with pregnancy, childbirth, or related medical conditions. Click here for our prior blog summarizing its requirements. In addition, the EEOC published new guidance about the PWFA since our blog, which can be found here: What You Should Know About The Pregnant Workers Fairness Act.
PUMP
The Providing Urgent Maternal Protections of Nursing Mothers Act (PUMP) passed with the PWFA effective now with changes to remedies effective April 28, 2023. PUMP amended and expanded upon the reasonable break time requirements under the Fair Labor Standards Act (FLSA), as it relates to lactation requirements. Currently, employers covered by the FLSA (that's probably you) must allow lactation breaks for non-exempt employees and provide a private lactation space that is not a bathroom.
Under PUMP, all employees, exempt and non-exempt, of FLSA-covered employers will have the right to take lactation breaks. The breaks are generally unpaid unless otherwise required by law. But, non-exempt employees taking a lactation break must be paid if they take the break during an otherwise paid break period OR if they are not completely relieved of duty for the entire break period. Employers with fewer than 50 employees are exempt from these requirements if complying would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
Also, as we were writing this blog, the Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) No. 2023-1, "Telework Under the Fair Labor Standards Act and Family and Medical Leave Act". This bulletin discusses in part, break time for nursing mothers and notes that with respect to teleworkers, "[I]f a remote employee chooses to attend a video meeting or conference call – even if off camera – generally the employee in that case is not relieved from duty and, therefore, must be paid for that time."
STATE PREGNANCY ACCOMMODATION LAWS
But that's not all! As mentioned above, many states have or are enacting pregnancy accommodation laws. These apply to what are sometimes referred to as the "common conditions of pregnancy" regardless of whether the employee's condition qualifies as a disability under the Americans with Disabilities Act or comparable state law.
Each of these laws differs and should be separately analyzed. What accommodations must an employer offer? What documentation can be required? Here are some key areas to look out for.
Applicability to Smaller Employers
The PWFA applies to employers with 15 or more employees. However, some of the state-level pregnancy accommodation laws apply to smaller employers. For example, Alaska, Hawaii, Maine, Michigan, Minnesota, Montana, New Jersey, New York, North Dakota, Oklahoma, Oregon, South Dakota, Vermont, Washington D.C. and Wisconsin's pregnancy accommodation law will apply if the employer employs at least 1 employee. Other state laws apply if the employer has more than 1 employee but fewer than 15 employees.
Common Themes
The types of reasonable accommodations required for employees who have conditions related to pregnancy or childbirth vary state by state. However, common themes of accommodations include:
- Frequent or longer breaks
- Modification of equipment
- Light duty if available and if requested
- Modifying seating or standing requirements
- Modified work schedules
Leave as Accommodation
Many state laws prohibit employers from requiring an employee to take a leave of absence. Check out Connecticut, Delaware, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, Washington, and Washington, D.C. This is consistent with the prohibitions in the PWFA and beneficial to both employees and employers.
Another example of a different standard is the Minnesota Human Rights Act. A Minnesota employer cannot claim undue hardship as a defense if the employee is requesting one of the following accommodations: 1) more frequent restroom, water, and food breaks; 2) seating; or 3) limits on lifting items over 20 pounds.
Matrix Can Help!
This just touches the surface of the differences among the laws! Reliance Matrix offers integrated leave management services including ADA and pregnancy accommodation solutions. Our teams are equipped with a comprehensive resource detailing pregnancy accommodations by state and at the federal level. We can help you comply with these laws in the states where you conduct business. For more information, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].