Working while pregnant or nursing is a fact of life for millions of Americans. During that time, they need certain accommodations to do their job and remain productive. Without these accommodations, some pregnant employees have struggled to stay working and in some cases, have eventually lost their jobs. Sometimes these instances made employers vulnerable to lawsuits and steep penalties.
Pregnancy alone is not a disability under the Americans with Disabilities Act (ADA). This has been a gray area for employers on how best to accommodate pregnant workers with temporary limitations. But now, new federal laws give greater protections for pregnant employees and more clarity to help employers provide accommodations.
Here are 3 things employers should know about the new laws:
1. What Are the New Protections?
The Pregnant Workers Fairness Act (PWFA), effective June 23, 2023, protects pregnant workers and job applicants who have temporary physical or mental limitations due to pregnancy, childbirth or other related conditions. The PWFA applies to employers with 15 or more employees.
“The Act requires employers to provide ADA-like reasonable accommodations so long as those accommodations do not impose an undue hardship on the business,” says Janîce Malcolm-Beeker, assistant general counsel for Group Benefits at The Hartford. “Some of those accommodations could be modified equipment, special seating arrangements, extra breaks or even providing leave. I encourage employers to be creative and collaborate with the employee to find an appropriate solution.”
Previously, employers were only required to provide reasonable accommodations to pregnant workers when their pregnancy, childbirth or related conditions rose to the level of a disability under the ADA, when required by state law, or when accommodations were made for other similarly situated workers who were not pregnant.
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) expands eligibility to more women who need reasonable break time to express breast milk during the first year after childbirth. Previously, employers were only required to provide hourly or non-exempt workers with reasonable breaks to pump their breast milk. The PUMP Act expands eligibility to salaried or exempt employees. The expanded eligibility, effective April 28, 2023, applies to employers with 50 or more workers unless certain requirements would cause an undue hardship.
“Employers must provide a private, secure space, other than a bathroom, for nursing mothers. Break time for hourly employees to express breast milk is generally unpaid. If they do any work while expressing milk or if they do so during a regularly paid break period, it must be paid,” Malcolm-Beeker explains.
Exempt employees should be paid their full weekly salary as required by applicable law, whether or not they take breaks during the time they’re expressing breast milk.
There are some exceptions. Crewmembers of air carriers are exempted from the PUMP Act’s requirements. While the law does cover rail carriers and motorcoach services operators, there are exceptions and delayed effective dates for certain employees. There are no similar exemptions for other transportation industry employers.
Both laws were part of the omnibus spending bill signed into law by President Biden on December 29, 2022.
2. Why the Laws Came About and Their Impact on Pregnant Workers
More than 40 years after the passage of the federal Pregnancy Discrimination Act (PDA), many working women still face challenges, including losing their jobs.
“It’s important for employers to remember that pregnancy is a temporary condition,” says Megan Holstein, head of absence management for Group Benefits at The Hartford. “Finding appropriate accommodations to support a woman during that time is simply the right thing to do. And frequently, employers pay the price when they don’t.”
The Equal Employment Opportunity Commission (EEOC), which enforces the PDA, ADA and now these new laws, investigates hundreds of complaints against employers each year and recovers more than $10 million a year in benefits for employees.1 Some examples include the case of a woman who was newly hired by a restaurant, but then abruptly fired when management learned she was pregnant. Another case involved a supermarket employee, who after sharing the news with her co-workers that she was pregnant, was told by management that she was no longer needed. Both of those employers eventually paid tens of thousands of dollars to settle EEOC complaints.
Conversely, there are examples of pregnant workers who have also challenged their job termination in court – and lost. They include a factory worker whose request for reduced hours was denied. Instead, she was put on involuntary unpaid leave and later fired. A truck driver who asked for either temporary help loading her vehicle or to be temporarily assigned new duties while she was pregnant, was given neither. She was forced to take unpaid leave and later fired.
3. How To Prepare for the New Laws
Faced with the quick applicability of these new laws, employers should:
- Take note that the Pregnancy Discrimination Action of 1978 already prohibits employment discrimination on the basis of pregnancy, childbirth or other related conditions. Many local and state laws already provide similar or better protections. These new laws do not preempt local and state laws that provide more generous protections.
- Review their existing employment policies to ensure compliance with these new laws and update them if necessary.
- Create a process for employees to request an accommodation due to pregnancy-related limitations.
- Train management and frontline staff on how to handle accommodation requests.
- Get creative in finding workable accommodations and for securing private spaces for nursing mothers. For example, to meet the PUMP Act requirement for a secured private area, an employer could consider dedicating unused office space or conference rooms with door locks, reserving an area and offering portable screens or installing privacy curtains in a select area.
- Consult their benefits counsel for compliance assistance if necessary.
Additionally, promoting an inclusive work culture that respects the needs of co-workers who require accommodations can help reinforce the importance of these laws and of support for everyone’s well-being. For example, supervisors and co-workers can be attentive to time that a nursing employee has blocked on her calendar for expressing milk and not schedule meetings or conferences during those blocked periods.
“The EEOC will be watching how employers treat a pregnant or nursing worker going forward,” Holstein says. “And you know who else will watching? That woman’s co-workers.”
Access more information on the ADA and accommodations in the workplace:
- What Employers Need To Know About Job Descriptions and ADA Compliance
- Compliance Considerations: ADA Best Practices
- Working Together: The Interactive Process
1 EEOC Pregnancy Discrimination Charges FY 2010-FY 2021, viewed February 2023.