Human Resources

Newsletter February 2023

The recently enacted 4,155 page Omnibus Spending bill included the Pregnant Workers Fairness Act “PWFA,” which expands workplace protections to pregnant workers, and the Providing Urgent Maternal Protections for Nursing Mothers Act, “PUMP” Act.

“PWFA” – Provisions Related To Pregnant Employees:
Covers employers with 15 or more employees, and goes into effect June 27.

Like the ADA, employers are required to provide reasonable accommodations, absent undue hardship. However, under the PWFA, such accommodation must be granted for “physical or mental conditions” related to pregnancy, childbirth, or related medical condition,” which is a lesser standard than the required “physical or mental impairment” under the ADA.

Another major distinction between the ADA and the PWFA is the definition of a “qualified individual.” Under the ADA an individual must be able to perform the essential functions of the job with or without reasonable accommodation. Additionally, eliminating an essential job function is not a reasonable accommodation.

However, under the PWFA, an individual is still considered “qualified” if the inability to perform an essential function is for a temporary period, and can be reasonably accommodated.

Specifically requires employers to engage in the interactive process with employees requesting a reasonable accommodation related to pregnancy, childbirth, or a related medical condition.

Prohibits employers from denying an employment opportunity, or taking an adverse employment action, based on the need for a reasonable accommodation to the known limitations related to pregnancy, childbirth, or a related condition.

Prohibits employers from requiring employees to take leave if another reasonable accommodation could be provided. So, granting leave is a last resort, unless of course the employee prefers that as the reasonable accommodation.

Prohibits employers from retaliating against anyone who complains about a violation of the PWFA, or participates in an investigation, hearing, or proceeding related to the same. Also prohibited is coercing, threatening, intimidating, or interfering with anyone’s rights under the PWFA.
The bottom-line here is that employers are now required to provide reasonable accommodations to pregnant employees. Previously this was only required in certain circumstances under the ADA, or Title VII. Further, the duty to do so goes beyond similar duties under the ADA. Much litigation will no doubt be created by this Act. Employers need to carefully consider the treatment of pregnant employees in all aspects of employment. Some states, such as Kentucky, also have employment laws protecting pregnant employees. These laws must also be considered, as they may provide greater protections.

“PUMP” Act – Provisions related to Nursing Mothers:

Expanded to exempt employees an employer’s obligation under the Fair Labor Standards Act to provide employees with reasonable break time to express breast milk. This previously applied only to non-exempt employees.