President Joe Biden has signed legislation that expands the protections for employees who are pregnant or nursing a child. Some of the changes took effect immediately, whereas others are effective in June.
The Details:
Providing Urgent Maternal Protections for Nursing Mothers Act:
Effective December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act amended existing law to entitle more employees to reasonable break time to express breast milk for their nursing child.
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Before December 29, 2022
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Beginning December 29, 2022
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Employers must provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child's birth, each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. Under federal law, these two requirements apply to only employees classified as non-exempt under the Fair Labor Standards Act.
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The requirements apply to both non-exempt and exempt employees.
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The break time may be unpaid unless otherwise required to be paid by federal, state or municipal law, provided the employee is completely relieved from duty during the entirety of the break.
Note: With limited exceptions, federal law requires employers to pay exempt employees their full salary in any workweek in which they perform any work, regardless of the quantity or quality of the work. As such, deductions from any exempt employees’ salary for such breaks are prohibited.
As was the case prior to the amendment, employers with fewer than 50 employees are exempt from the requirements if they 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. Crewmembers of air carriers are also exempt from the law. There are also special rules for rail carriers. See the text of the law for details.
Pregnant Workers Fairness Act:
Effective on June 27, 2023, the Pregnant Workers Fairness Act prohibits employers with 15 or more employees from:
- Failing to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
- Requiring a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in the Americans with Disabilities Act;
- Denying employment opportunities to a qualified employee if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy, childbirth or related medical conditions of the qualified employee;
- Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth or related medical conditions of the qualified employee; or
- Taking adverse action in terms, conditions or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth or related medical conditions of the employee.
Note: Several states and local jurisdictions already require employers to provide such accommodations. Some apply to smaller employers and/or have additional requirements. Check your state and local laws for details.
Next Steps:
- Ensure reasonable break time is provided in accordance with the Providing Urgent Maternal Protections for Nursing Mothers Act.
- If you have 15 or more employees, review policies and practices to ensure compliance with the Pregnant Workers Fairness Act by June 27, 2023.
- Train supervisors on the changes.