New Requirements for Small Businesses and Employers
The Pregnant Workers Fairness Act (PWFA) was passed into law on December 29, 2022 by President Biden. Beginning June 27, 2023, the PWFA requires employers with fifteen (15) or more employees to provide reasonable accommodations to pregnant employees and job applicants. In addition to providing reasonable accommodations, the PWFA requires employers to temporarily excuse pregnant workers from essential job functions if there is no reasonable accommodation for said function. It is important to note that the PWFA specifically applies to accommodations and acts more like an enhancement or expansion of the ADA. The PWFA does not replace any existing laws relating to pregnant employees or childbirth, it simply supplements them.
Reasonable Accommodations for Pregnant Employees May Include
Under the PWFA, reasonable accommodations for pregnant employees may include, but are not limited to,
- additional break time to use the bathroom, eat, and drink water,
- the ability to frequently sit down,
- a closer parking spot,
- more flexible hours,
- being excused from strenuous activities
- and/or activities that could expose the employee to chemicals unsafe for pregnancy.
In short, employers are required to provide accommodations to pregnant employees that do not cause an “undue hardship” on company operations. The PWFA follows the Americans with Disabilities Act (ADA) definition of “undue hardship” which is anything that causes a significant difficulty or expense for the employer. While “undue hardship” is determined on a case by case basis, generally a larger employer with greater resources will be expected to make accommodations that require more effort than compared to a smaller employer with fewer resources.
In short, employers are required to provide accommodations to pregnant employees that do not cause an “undue hardship” on company operations.
The PWFA requires an interactive process between the employer and the pregnant employee. Both parties must work together to find accommodations that will allow the pregnant employee to continue working without jeopardizing their health and without putting too much of a burden on the company. That being said, once an employee communicates to their employer a limitation related to pregnancy, childbirth, or a related medical condition, the employer must engage with the employee and make a good faith effort to provide a reasonable accommodation before determining the accommodation to be an “undue hardship”.
Providing Urgent Maternal Protections for Nursing Mothers Act
In addition to the PWFA, in December of 2022, President Biden also signed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law, which went into effect immediately. The PUMP Act requires employers to provide a time and private place for women to pump breast milk at work for one year after their child’s birth. Employees are now entitled to a private place, other than a bathroom, that is free from intrusion from coworkers or the public. The PUMP Act requires employers to provide “reasonable break time” for nursing women, which will likely vary from woman to woman. Accordingly, complaints under the PUMP Act are reviewed on a case by case basis. Before an employee can file a complaint, they must notify their employer of noncompliance and allow 10 days for the employer to come into compliance with the Act. Employers with fewer than fifty (50) employees may have an “undue hardship” exemption from providing a break time and place, but they must demonstrate that compliance requires a significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. This exemption is not available to employers with 50 or more employees.
Employers Can Be Liable
Overall, employers can be liable for equitable and compensatory relief under both the PWFA and the PUMP Act, including backpay and attorney’s fees. Consequently, employers should ensure that they are following not only these new pieces of legislation but also other state and federal laws dealing with pregnant employees such as Title VII, the ADA, and the Family and Medical Leave Act of 1993, when applicable.
Should you have any questions regarding your new obligations as an employer, please contact one of our BHMK attorneys to help ensure compliance. Proactivity is always the best defense to employment related claims.