Although these laws are very similar to existing requirements under the ACA, the Fair Labor Standards Act (FLSA) and the Americans with Disabilities Act (ADA), employers should review their existing policies for pregnant and nursing workers and ensure that the protections of the two new laws are incorporated.

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

In 2010, the Break Time for Nursing Mothers Act passed as part of the ACA. The Act, which amended the FLSA, required employers to provide reasonable break time for nonexempt employees to nurse and a private room (other than a bathroom) to express breast milk. Certain employees of airlines, railroads and motorcoach carriers are exempt from nursing employee protections under the FLSA.

The PUMP Act builds on these ACA protections by expanding the categories of individuals entitled to protection, extending coverage for up to one year after childbirth, and making enforcement mechanisms available. Although the PUMP Act was effective December 29, 2022, the enforcement mechanisms only took effect on April 28, 2023.

Under the PUMP Act, covered employers must provide all FLSA-covered employees with reasonable break time to express breast milk for up to one year after the birth of the child. The expansion of coverage, which now includes exempt employees, means new categories of workers may be covered, such as teachers, nurses or professional workers.

During the break, the employee must be completely relieved from duty or paid for the break time. Employers with fewer than 50 employees are not subject to the PUMP Act if compliance would impose undue hardship.

The PUMP Act also strengthens remedies available under the FLSA. Employees may file a complaint against an employer with the Wage and Hour Division of the Department of Labor and also have a private right of action against an employer for violations of the PUMP Act. Remedies are expanded under the PUMP Act to include potential compensatory damages and other remedies. Department of Labor guidance on implementation of the PUMP Act includes several examples of protections under the law.

The Pregnant Workers Fairness Act (PWFA)

The PWFA applies to public and private sector employers with 15 or more employees, federal agencies, employment agencies and labor organizations. The law requires those employers to offer reasonable accommodations to employees who have limitations due to pregnancy, childbirth or related medical conditions. It is effective June 27, 2023. The Equal Employment Opportunity Commission must issue regulations by December 27, 2023.

The PWFA is similar to the ADA’s accommodation requirement, but the individual does not need to meet ADA disability standards to be covered. An employee may seek an accommodation for a physical or mental condition related to, affected by or arising out of pregnancy, childbirth or related medical conditions. Related medical conditions include:

• Morning sickness
• Gestational diabetes
• Pregnancy-induced hypertension
• Pregnancy-related carpal tunnel syndrome
• Miscarriage
• Sciatica
• Lactation (or the need to express breast milk)
• Recovery from abortion
• Physical injuries resulting from childbirth
• Postpartum depression

Covered employers must provide reasonable accommodations to employees who request them unless the accommodation would cause an undue hardship on the employer’s operations. The EEOC has provided examples of possible reasonable accommodations, including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

Additionally, covered employers cannot:

• Require an employee to accept an accommodation without a discussion about the accommodation with the employer
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation)
• Interfere with any individual’s rights under the PWFA

The EEOC has published a PWFA infographic and a PWFA poster that covered employers may use.

Implications for covered employers

Employers subject to the FLSA will need to broaden protections for nursing mothers to exempt employees as well as nonexempt employees. This may require special attention to working mothers who need to be given private space or break time to express milk.

Employers subject to the PWFA should consult their current ADA accommodations policy to understand how it may need to be expanded to provide a process for a pregnant employee to request an accommodation related to pregnancy, childbirth or a related medical condition. New accommodation alternatives may need to be developed for these workers. Employers should also review the EEOC regulations once they are published in December 2023.

The new laws do not affect existing obligations under other state and federal laws, including the Family and Medical Leave Act and state and local paid leave statutes. Presently, over 30 state and local jurisdictions have workplace laws concerning the right to breastfeed. Accordingly, affected employers should review all applicable requirements to determine whether they are fully compliant.

Finally, employers should consider training for human resources staff and supervisors on how to respond to requests from employees for accommodations under the PUMP Act or the PWFA.