Navigating New Federal Laws for Pregnancy and Nursing Accommodations in the Workplace by Andrew Heck and Micayla Schmidt

In 2023, two new federal laws were passed to assist employees who are pregnant and new mothers.  The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and The PUMP for Nursing Mothers Act (PUMP Act) became effective on April 28, 2023.  What do you need to know for your business?

PWFA

The PWFA requires employers to provide reasonable accommodations to pregnant employees as long as there is no undue hardship placed on the employer.   Previously, pregnant workers were not provided with the ability to request an accommodation – or at least were not provided any legal protection if they did.   Pregnant workers could not be fired, but employers were also not required to provide accommodations to help the worker complete the essential functions of their job.

The PWFA follows the outline of other discrimination laws.  The new law applies to private employers with fifteen or more employees.

The term “reasonable accommodation” is recognizable as a term used for employees with disabilities under the Americans with Disabilities Act (ADA).  Similar to the ADA, reasonable accommodations may include things like updating facilities to create more readily accessible spaces and temporarily modifying work schedules.

What may meet the standard for reasonable accommodations under the PWFA is going to be decided on a case-by-case basis.  A House Education and Labor Committee Report from 2021 discussed several reasonable accommodations, including: “seating; water; closer parking, flexible hours; appropriately sized uniforms and safety apparel; additional breaktime to use the restroom, eat and rest; excusing the pregnant worker from strenuous activities; and excusing the worker from activities that involve exposure to compounds not safe for pregnancy.”

An employer and employee should work collaboratively to develop a reasonable accommodation.   Similar to the ADA, the employer needs to participate in an interactive process to determine an appropriate reasonable accommodation.

An employee who believes an employer has not provided a reasonable accommodation may file a charge of discrimination with the Equal Employment Opportunity Commission.  After the EEOC investigates the charge, the employee may file a lawsuit, similar to other discrimination laws.

Here are some practical tips for a business to comply with the PWFA:

(1) Employers should inform managers, supervisors, and HR professionals of this new regulation. Employers should train managerial staff on how to appropriately handle a request for pregnancy accommodations.

(2) Employers should be mindful of additional state and local laws that may require accommodations in addition to those required under the PWFA.  Indiana does not have any laws requiring accommodations for pregnant workers.

(3) Considering the ambiguity surrounding the term “reasonable accommodations” for the PFWA, it may be advisable for Employers to err on the side of accommodating too much, rather than not enough. The cost of over-accommodating is probably low, but the cost of under-accommodating – like the costs and expenses of a lawsuit – could be quite high.

The PUMP for Nursing Mothers Act

The PUMP Act requires employers to provide a break and a space for breastfeeding workers to express breast milk for up to one year after the birth of a child.  Unlike the PWFA, the PUMP Act applies broadly to almost any “employer” following the rules of the Fair Labor Standards Act that governs minimum wage and overtime requirements.   This may not be a big change to most Indiana employers, as Indiana already had a state law requiring the time and private space to express breast milk.

The PUMP Act provides specific detail as to the types of accommodations required. Namely, the PUMP Act requires that workers with nursing children be given: (1) reasonable break time for expressing breast milk for one year, (2) a place for expressing breast milk that is free from intrusion, and (3) if the worker is not completely freed from duty during the break time, compensation.

There is an exemption available for some small employers. To qualify two elements must be met: (1) the employer has less than fifty employees, and (2) the employer faces “undue hardship” related to the PUMP Act requirements. For many small employers, even if they have met the first component, they may fail the second component because the PUMP Act does not impose on them any “undue hardship”. Unless an employer has a particularly confident basis for believing that it satisfies both elements, employers may want to operate on the assumption that they are covered.

An employee can sue an employer who violates the PUMP Act in Federal or State court. Relief can include employment reinstatement if the employee was terminated, payment of lost wages lost, and liquidate damages for a total of two times any wages lost.  An employer who “willfully” violates the Pump Act may be fined up to $10,000, and an employer who is a repeated willful violator may also face imprisonment for up to six months.

Here are some practical tips for complying with the PUMP Act:

(1) Employers should ensure that managers are made aware of the accommodations required under the PUMP Act and are prepared to comply.

(2) Employers should keep in mind that PUMP Act break time must be compensated unless the worker is completely freed from job duties during the break time. If the Employer intends for the break time to be uncompensated, it should be communicated to the worker that she is not expected to respond to emails, to be on call, or to perform any other job duties during the break time.

(3) The private places used for PUMP Act break time do not need to be permanently dedicated for that purpose. However, they must provide sufficient barriers to satisfy the privacy element.

Additional Requirements Under Indiana Law

            Indiana Code 22-2-14-2 provides that employers must provide a private place where nursing employees can express breast milk. This private space must be located someplace other than a restroom stall. Employers must provide a refrigerator or allow employees to have their own portable cold storage containers to keep the expressed milk cold. An employer may be held liable for resulting harm if the employer was grossly negligent or acted in bad faith.