Congress Expands Rights for Workers Who are Pregnant or Nursing

February 2, 2023

In December Congress passed an omnibus spending bill which President Biden signed. Included in that bill are two laws that expand the rights of employees who are pregnant or nursing: the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act.

Pregnant Workers Fairness Act (“PWFA”)

The PWFA becomes effective on June 27, 2023. It amends Title VII of the Civil Rights Act of 1964 and, like the rest of that statute, it applies to employers with 15 or more employees.

The PWFA expands existing federal rights for pregnant employees and applicants by requiring employers to “make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” An employer is relieved of this obligation only if it can show that accommodating the employee would impose undue hardship on the company’s operations.

Until now, federal law required employers to provide reasonable accommodations to pregnant employees only if their pregnancy-related medical restrictions constituted a “disability” under the Americans with Disabilities Act (“ADA”). However, under the PWFA covered employers must make reasonable accommodations regardless of whether the employee would be deemed disabled for ADA purposes.

Furthermore, it is not necessary that the employee be able to perform all of her job’s essential functions. The PWFA requires the employer to provide reasonable accommodation if the employee’s inability to perform an essential function is temporary, the essential function can be performed in the near future, and the inability to perform it can be reasonably accommodated.

Employers cannot require employees to use paid or unpaid leave “if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee.” Of course, this does not preclude the employee from electing to use available leave.

It is unlawful to deny employment to qualified workers because of their need for an accommodation. Employers are also prohibited from taking adverse employment actions against employees based on their request for or use of an accommodations.

The PWFA concerns only reasonable accommodations for pregnant workers. It is already unlawful to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions, and has been since the Pregnancy Discrimination Act became law in 1978.

The EEOC is required to issue regulations pertaining to the PWFA within one year. The regulations are to include “examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.” The EEOC provides information about the PWFA here.

Although the PWFA applies to employers with 15 or more employees, the Colorado Anti-Discrimination Act (“CADA”) applies to all employers. Since 2016, CADA has required employers to provide reasonable accommodation for any “health conditions related to pregnancy or the physical recovery from childbirth.” Thus, under CADA (as under the PWFA) reasonable accommodation is required as long as the condition is “related to” pregnancy or a condition following childbirth. The condition does not need to be a “disability” as defined in the ADA. CADA also prohibits “adverse action” against employees or applicants who request or use reasonable accommodations related to pregnancy, physical recovery from childbirth, or a related condition. However, under CADA the worker must still be able to perform the “essential functions” of the job.

Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”)

Since 2010, the Fair Labor Standards Act has required employers to provide non-exempt employees who are nursing with reasonable time and a private space to express breast milk. The PUMP Act expands that right to all employees, whether exempt or non-exempt.

Employers with fewer than 50 employees are not subject to this requirement if it “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

The Wage and Hour Division’s fact sheet on the PUMP Act is here.

Of course, Colorado law already required employers to provide unpaid break time, or allow an employee to use paid break time, to express milk. The Workplace Accommodations for Working Mothers Act became law in 2008. The CDLE’s INFO #10 discusses this law and can be found here. Note, however, that the section on federal law has not been updated since passage of the PUMP Act.

This article discusses only some main aspects of these laws. If you need more information, you can contact me or find information the websites of the relevant government agencies.