New Federal Protections for Pregnant and Nursing Workers

New Federal Protections for Pregnant and Nursing Workers

April 28, 2023
New Federal Protections for Pregnant and Nursing Workers
Several federal laws protect workers during nursing and
The amendments also expand available remedies. Potential
pregnancy, but two new federal laws, passed as part of the
legal and equitable remedies include hiring, reinstatement,
Consolidated Appropriations Act of 2023, go into effect
promotion, lost wages, and other damages, including
this year and expand those protections in certain ways. The
punitive damages. These penalties are available for
Providing Urgent Maternal Protections for Nursing Mothers
violations after April 28, 2023. The Department of Labor
Act (PUMP for Nursing Mothers Act), Pub. L. No. 117-
enforces the FLSA, including accepting worker complaints.
328, 136 Stat. 4459 (2022), expands protections for nursing
The act does not address congressional employment or
mothers, requiring break time and appropriate facilities for
amend the Congressional Accountability Act of 1995
workers to express breast milk. The Pregnant Workers
(CAA), which specifies FLSA provisions applicable to
Fairness Act (PWFA), Pub. L. No. 117-328, 136 Stat. 4459
legislative employees.
(2022), requires employers to modify workplace rules and
conditions where needed to accommodate pregnancy-
The Pregnant Workers Fairness Act
related limitations, provided that an accommodation is
(PWFA)
reasonable and does not present an undue hardship to the
The PWFA requires reasonable accommodations for worker
employer.
limitations arising from “pregnancy, childbirth, or related
medical conditions.” The PWFA does not define this
This In Focus summarizes these two statutes, placing them
phrase, but the same phrase is also used in Title VII of the
in context and highlighting the ways they draw on and
Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et
differ from existing laws. It explains who qualifies for
seq. (barring discrimination in employment). Courts
accommodations, what employers must provide, and the
construing Title VII have held it to cover complications
limits of employers’ responsibilities.
during pregnancy, such as nausea and lifting restrictions;
recovery from childbirth including by caesarian section;
Providing Urgent Maternal Protections
and postpartum conditions such as depression. Although
for Nursing Mothers Act (PUMP for
there is some judicial variation, some courts have
Nursing Mothers Act)
concluded that “related medical conditions” can also
In the PUMP for Nursing Mothers Act, Congress expanded
include fertility treatment, lactation, and abortion.
existing protections for nursing mothers. The Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq.,
The PWFA provides that its requirement for “reasonable
requires lactation breaks for some nursing mothers. The
accommodations” has the same meaning as in the ADA.
PUMP for Nursing Mothers Act takes those protections,
Under the ADA, courts have held that a reasonable
which previously covered certain overtime-eligible
accommodation is a modification of workplace rules or
employees, and applies them to nearly all FLSA-covered
practices that is feasible or plausible in most cases.
workers. The new law’s substantive requirements largely
Reasonable accommodations for pregnancy might include
track the earlier FLSA provisions. They afford qualifying
seating, access to drinking water, bathroom breaks, and
employees break time and a private place (not a bathroom)
light duty. Whether a specific accommodation is required
to express breast milk. The protections apply for one year
hinges on the facts of each case; reasonableness depends on
after a child’s birth. Employers need not pay workers for
the employee’s limitations and the workplace
break time designated for pumping, but employees who
circumstances.
pump during break times are entitled to compensation on
the same terms as those who use their break times for other
Under the PWFA’s terms, and in line with its ADA model,
purposes. The law’s enhanced coverage takes effect
an employer need not provide an accommodation that
immediately.
imposes an “undue hardship” on business operations. This
also requires a case-by-case analysis, considering such
Even as amended, the law does not cover certain workers.
factors as the nature and cost of the accommodation, the
In particular, employers with fewer than 50 workers need
employer’s resources, and the size and function of its
not comply if doing so would impose an undue hardship.
workforce. The employer bears the burden of showing an
An “undue hardship” is defined in similar terms as Title I of
undue hardship once the worker identifies a reasonable
the Americans with Disabilities Act (ADA), 42 U.S.C. §§
accommodation. As with the ADA, the PWFA obliges
12111–12117, governing workplace disability
employers and employees to negotiate in good faith to
accommodations: “causing the employer significant
determine appropriate accommodations. ADA case law has
difficulty or expense when considered in relation to the
not produced bright-line rules governing the fact-specific,
size, financial resources, nature, or structure of the
individualized assessment of what constitutes a reasonable
employer’s business.”
accommodation or an undue burden.
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New Federal Protections for Pregnant and Nursing Workers
Like the ADA and many other antidiscrimination measures,
job applicants and employees from adverse action because
the PWFA bars retaliation against a worker who has
of pregnancy or related conditions. The law also addresses
requested an accommodation, has opposed any practice
harassment based on pregnancy. As construed by the
barred by the PWFA, or has helped someone make a
Supreme Court in Young v. United Parcel Service, 575 U.S.
complaint.
206 (2015), the PDA does not generally require employers
to accommodate pregnant workers; this limitation appears
The PWFA, however, differs from the ADA in notable
to have motivated some PWFA proponents in passing the
ways. While the ADA requires that disabled employees be
new law. A worker would rely on Title VII, however, for
able to perform the essential functions of their job, the
claims of pregnancy-related adverse action aside from a
PWFA would protect employees who cannot perform an
refusal to provide accommodations.
essential function if they can resume it in the “near future”
and can be reasonably accommodated. The PWFA also
Other statutes also support pregnant workers. Many
directly addresses the potential concern of mandatory leave,
workers can invoke the Family and Medical Leave Act
requiring that employers not force a qualified employee to
(FMLA) for unpaid leave related to childbearing. Some
take leave if another accommodation would allow the
pregnant people face pregnancy-related impairments
worker to remain on the job. The law states, however, that it
serious enough to satisfy the ADA’s definition of a
will not require modification of any employer-sponsored
“disability,” and many workers may, along with any PWFA
health plan to “pay for or cover any particular item,
claims, bring ADA claims for accommodations. See CRS In
procedure, or treatment.”
Focus IF12227, The Americans with Disabilities Act: A
Brief Overview, by Abigail A. Graber. The Rehabilitation
The PWFA also covers more workers than the ADA, as it
Act of 1973 creates similar protections for workers in
includes those who do not claim an impairment within the
federally funded programs and most federal agencies. In
ADA’s definition of a “disability.” The statute requires
addition, many states have enacted laws protecting pregnant
accommodations for a pregnancy-related “known
workers in recent years, including requirements for
limitation,” which is a “physical or mental condition related
pregnancy accommodations and nursing breaks. The PWFA
to, affected by, or arising out of pregnancy, childbirth, or
does not preempt more protective state laws.
related medical conditions . . . whether or not such
condition meets the definition of disability.” While there is
Considerations for Congress
a substantial body of precedent applying the ADA’s
Over the years, Congress has expanded pregnant workers’
standard defining “disability,” the scope of this new,
protections through piecemeal legislation. Congress may
“known limitation” standard may require further judicial
choose to make no further changes. Should it seek to
elaboration. The new category, “known limitation,” stands
enhance or consolidate protections further, Congress may
in contrast to many other PWFA provisions. In other areas,
choose to amend Title VII, the PWFA, the ADA, or the
as in defining “undue hardship” and “reasonable
FMLA. Congress might consider enumerating, as some
accommodation,” the PWFA follows prior statutes rather
state laws do, presumptively reasonable pregnancy
than introducing new rules.
accommodations.
Regarding its scope of coverage, the PWFA, like the ADA
Alternatively, while the PWFA addresses accommodations,
and Title VII, applies to employers of 15 or more workers.
Congress might consider enacting pregnancy-specific leave
It protects job applicants, federal workers, and state workers
entitlements beyond those qualifying as reasonable
(with sovereign immunity for state employers being
accommodations under the PWFA. Congress could make
waived). Legislative employees, too, are covered through a
leave available without requiring a pregnancy-related
cross-reference to the CAA. The PWFA applies to religious
impairment, reasonableness, or lack of undue hardship. For
employers, but it incorporates Title VII’s exemption
example, Congress could expand the FMLA leave for
allowing religious entities to require workers to adhere to
pregnant workers currently ineligible because of employer
the entity’s own faith and religious principles.
size or length of employment. It could also offer FMLA
leave specific to pregnancy and childbearing (the FMLA,
Enforcement procedures and remedies in the new law track
for example, offers additional leave for caring for a
those of Title VII. The PWFA grants the Equal
servicemember). Other statutes include leave, promotions,
Employment Opportunity Commission (EEOC) and the
and reemployment for those who leave work for such
Attorney General enforcement authority and charges the
activities as jury duty or military service.
EEOC with issuing regulations, including providing
examples of reasonable accommodations. The Board of
In any measures defining pregnancy protections, Congress
Directors of the Office of Congressional Workplace Rights
may delineate coverage, deciding whether to exclude
must promulgate regulations and administer the act for
smaller employers or religious employers. Congress could
federal legislative employees. Remedies can include
consider provisions specific to federal workers, such as
equitable relief, compensatory damages, punitive damages,
amending the CAA to include the PUMP for Nursing
and attorneys’ fees. The law goes into effect on June 27,
Mothers Act among FLSA protections for legislative
2023.
employees.
Other Protections for Pregnant Workers April J. Anderson, Legislative Attorney
Other protections still apply to pregnant workers. The
IF12392
Pregnancy Discrimination Act (PDA), in Title VII, protects
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New Federal Protections for Pregnant and Nursing Workers

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