In the recent $1.7 trillion Omnibus Spending Bill passed by Congress and signed into law by President Biden, two measures were included aimed at providing additional workplace protections for pregnant employees.

The first measure is the Pregnant Workers Fairness Act (the “PWFA”) which applies to employers with 15 or more employees. The PWFA extends the framework of the Americans with Disabilities Act (ADA) to employees with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions regardless of whether the condition meets the definition of a disability specified in the ADA (a “qualified employee”).

Thus, employers receiving accommodation requests from qualified employees must engage in the interactive process and offer a reasonable accommodation if it does not result in an undue hardship to the employer. The PWFA also makes it an unlawful employment practice to deny employment opportunities to qualified employees if the denial is based on the need for a reasonable accommodation. Further, an employer may not force an employee to take a leave if another reasonable accommodation can be provided. Finally, the PWFA prohibits retaliating against an employee for requesting or using a reasonable accommodation.

Also in the spending bill is the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”). Currently, the FLSA requires that employers provide unpaid, reasonable break time and a place shielded from view and free from intrusion (not a bathroom) for non-exempt employees to express breast milk up to 1 year after the child’s birth. There are similar laws in some states, including California. The PUMP Act expands this requirement to all employees covered under the FLSA including exempt (i.e., salaried) employees and also includes a new anti-retaliation provision. In addition to the existing exemption for employers with 50 or fewer employees if it would impose an undue hardship, there are also new exemptions for air carriers and a limited exemption for rail carriers.

Employers should review their existing accommodation procedures to ensure they are in compliance with the new laws. Employers should also look for forthcoming EEOC regulations within one year of passage of the PWFA and the Pump Act. The PWFA will be effective on June 27, 2023 (180 days after enactment) and parts of the PUMP Act will be effective immediately with the full law coming into effect on April 28, 2023 (120 days after enactment).

Source: Proskauer Rose LLP – Tony Oncidi and Ryan McGill

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