What To Expect When You’re Expecting……..
……the EEOC Pregnant Workers Fairness Act Regulations
At the end of last year, President Biden signed the Consolidated Appropriations Act for 2023, which included new legal protections for pregnant and nursing workers, aptly named the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act) and the Pregnant Workers Fairness Act (“PWFA”).
While many employers are aware of these new laws, they also have been left wondering what precisely their obligations are under the PWFA (the PUMP Act is more straightforward and is discussed below). The Equal Employment Opportunity Commission (“EEOC”) is required to issue regulations to carry out the PWFA and submitted its proposed regulations to the White House Office of Management and Budget (“OMB”) for review on June 28, the day after the PWFA went into effect. The EEOC’s submission to OMB is an indicator that the regulations could be published soon, which is good news for employers, as the EEOC has already begun accepting charges under the PWFA (despite the fact that only limited guidance has been made available).
PWFA
The PWFA requires employers to offer reasonable accommodations to pregnant workers. Pregnancy and its most common symptoms are generally not considered “disabilities” under the Americans with Disabilities Act (“ADA”) in the absence of significant medical complications. Accordingly, the requirement that employers provide reasonable accommodations under the ADA typically does not apply to pregnant employees. Thus, the enactment of the PWFA. The PWFA is similar to the ADA in many respects – the definition of “reasonable accommodation” is the same, and the “interactive process” that applies to ADA discussions applies to the PWFA as well. However, one major difference is that unlike the ADA, the PWFA protects employees who are temporarily unable to perform an essential job function due to pregnancy, childbirth, or a related condition. Employers may be required temporarily to relieve pregnant employees of essential job functions if needed. If a pregnant worker is not able to perform the essential functions of her job, the employer must excuse that function if the inability is temporary, such that the employee will be able to perform the function “in the near future,” and there is no accommodation that will enable the employee to perform that function. For example, if an employee cannot lift 50 pounds because she is in the latter stages of pregnancy, and that is an essential function of her job, the employer must work around that inability, since it is only temporary, unless the workaround would cause an undue hardship. In contrast, under the ADA, an employer is not required to eliminate such essential job functions.
Some examples of possible reasonable accommodations under the PWFA include allowing a worker to:
- Sit while working.
- Drink water during the workday.
- Receive closer-in parking.
- Have flexible hours.
- Receive appropriately sized uniforms and safety apparel.
- Receive additional break time to use the bathroom, eat, and rest.
- Take time off to recover from childbirth.
- Be excused from strenuous activities and/or exposure to chemicals not safe for pregnancy.
Employers cannot require an employee to accept an accommodation without a prior discussion, deny a qualified employee a job because of the need for accommodation, require an employee to take leave (paid or unpaid) if another reasonable accommodation is available, or retaliate against anyone for reporting discrimination under the PWFA or participating in a PWFA investigation.
PUMP Act
The Fair Labor Standards Act (“FLSA”) requires employers to provide nonexempt employees with reasonable break time to express breast milk for up to one year after a child’s birth. The PUMP Act—which amends the FLSA—expands these requirements, affording break time and a private space to express breast milk to all nursing employees (previously, only nonexempt employees were provided this protection). It is important to remember that non-exempt employees must be paid for these breaks if they are not “completely relieved for duty”. So, if a nursing mother answers phone calls or responds to emails while she is pumping, she must be paid for that time. Exempt employees should be paid their full weekly salary as required by federal and Ohio law, regardless of whether they take breaks to express breast milk.
While we await the EEOC regulations, there are certain actions that employers should take now in order to comply with both the PWFA and PUMP Act:
- Display the updated EEOC “Know Your Rights” Poster, which is available on the EEOC website.
- Ensure you are complying with the PUMP Act by allowing nursing mothers reasonable break time to express breast milk (and a private location in which to do so).
- In accordance with the PWFA, provide “reasonable accommodations” for an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship.
FGKS Law is keeping an eye out for the EEOC regulations and will issue a Client Alert summarizing them when they become available. If you have any questions in the meantime about your obligations under the PWFA or PUMP Act, please contact one of the labor and employment law attorneys at FGKS Law.
For more information about FGKS Law attorneys and practice areas, please visit www.fgks-law.com.
