Expansions to Workplace Protections and Accommodations for Nursing and Pregnant Employees

At the close of 2022, several expansions to the protections provided for nursing and pregnant employees in the workplace were enacted on the state and federal level. There are already several state and local laws in place that are more generous, in certain ways, than these expansions, but employers should still be aware of these updates to ensure compliance with all applicable legal requirements, particularly with regard to enhanced accommodations for pregnancy, childbirth and related medical conditions.  

The Consolidated Appropriations Act of 2023

On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act of 2023 which includes two acts expanding rights for pregnant and nursing employees. These two acts are the Pregnant Workers Fairness Act (“PWFA”) and the PUMP for Nursing Mothers Act (“PUMP Act”).

The Pregnant Workers Fairness Act

The PWFA will take effect on June 27, 2023. The PWFA and its protections largely mirror the Americans with Disabilities Act (“ADA”). Under the PWFA, employers with 15 or more employees are required to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions by engaging in an interactive process with an employee or applicant, provided that the accommodation does not impose an undue hardship on the employer.  However, unlike the ADA, which only requires an accommodation to the extent the individual can perform the essential functions of their job with or without accommodation, the PWFA considers employees qualified for an accommodation even if they cannot perform the essential functions of their positions provided their inability to do so is for a temporary period, the essential function can be performed in the near future, and if the inability to perform the essential function can be reasonably accommodated. This provision imposes heightened obligations on employers who would not be subject to accommodation requirements under these circumstances in many jurisdictions. However, more guidance is needed concerning what would be considered a “temporary period” or “the near future.” Guidance also is needed around when the elimination of an essential function would be reasonable.  

Additionally, under the PWFA an employer cannot require an employee covered by this act to take paid or unpaid leave if another reasonable accommodation is available. Employees are also protected from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation under the PWFA.

While many employers are already required to provide reasonable accommodations for pregnancy, childbirth or related medical conditions under state or local laws, the passage of the PFWA creates additional avenues for employees to seek redress if they believe such accommodations were wrongly denied. Damages and remedies under the PWFA are the same as the ones available under Title VII and include reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. The PWFA also directs the Equal Employment Opportunity Commission (“EEOC”) to issue regulations no later than December 29, 2023, that will provide examples of reasonable accommodations that address known limitations related to pregnancy, childbirth, and related medical conditions.

The PUMP For Nursing Mothers Act

The PUMP Act amends the Fair Labor Standards Act (“FLSA”) and expands nursing employees’ access to break time and space to express milk. Previously, only non-exempt nursing employees were entitled to break time and a private space to express milk under the FLSA. The PUMP Act expands those rights to exempt nursing employees. More specifically, under the PUMP Act, an employer is required to provide reasonable break time for an employee to express breast milk for one year after the employee’s child’s birth each time the employee has need to express milk. The employer is also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express milk. However, an employer shall not be required to compensate an employee receiving reasonable break time under the PUMP Act for any time spent during the workday to express milk unless otherwise required by federal or state law or municipal ordinance. Break time provided under the PUMP Act shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such a break.

The PUMP Act does impose some limitations on the expansion of nursing employees’ rights. For instance, the PUMP Act provides for an exemption for small employers. An employer that employs less than 50 employees shall not be subject to the requirements of the PUMP Act if such requirements 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. Further, the PUMP Act imposes a notification period before an employee can seek remedies for an employer’s failure to provide a private place for the employee to express milk. More specifically, before an employee can commence an action concerning a failure to provide a private place to express milk, an employee must notify the employer of the failure and provide the employer with 10 days after such notification to comply with this requirement. However, this notification period is waived if the employee was terminated in retaliation for making a request for break time or a place to express milk, or for opposing any employer conduct related to this act, or if the employer has indicated it has no intention of providing a place, which complies with the PUMP Act, for the employee to express milk.

The PUMP Act also states that it shall not preempt a state law or municipal ordinance that provides greater protections to employees than the protections it provides. As such, greater protections under state law (e.g., the right to request break time to express milk for three years following the birth of the employee’s child under the recently amended New York State Labor Law as discussed below) and applicable NYC law (e.g., which does not impose a time limit on the right to request break time for pumping) will still apply.

The damages available under the PUMP Act are the same as those available under the FLSA, which include the payment of unpaid wages, reinstatement, back and front pay, and liquidated damages. The expansion of rights enacted by the PUMP Act took effect on December 29, 2022, but any remedies or damages available under the PUMP ACT shall not take effect until April 28, 2023.

New York State Labor Law

On December 9, 2022, New York Governor Kathy Hochul signed into a law an amendment to the New York State Labor Law, specifically NY Labor Law § 206-c, which expands accommodations and protections for nursing employees. This law will take effect on June 7, 2022. Employers who have offices in NYC are already subject to similar requirements under applicable NYC local laws.

Under the amended law, New York employers will be required to provide reasonable unpaid break time or to permit an employee to use paid break time or mealtime to express breast milk for up to three years following childbirth.  Importantly, under the amended law, there are no restrictions or constraints in terms of the frequency of these breaks; employees will be entitled to take a reasonable break each time they have a reasonable need to express breast milk. Employers in New York City will recall that the NYC law governing these rights is more generous as there is no limit on how many years an employee may need to express breast milk following childbirth, and the breaktime includes providing time to travel to/from the pumping space, set up the pump, clean the pump parts, and store the milk.

The amended law will also require New York employers to, upon request, designate a room or other location for an employee to express breast milk. The requirement for the location is similar to the pre-existing requirements under New York City Law.  Specifically, this room or location must be (i) in close proximity to the employee’s work area; (ii) well lit; (iii) shielded from view; and (iv) free from intrusion from other persons in the workplace or the public. The room or location must also include, at a minimum, a chair, working surface, nearby access to running water, and, if the workplace is supplied with electricity, an electrical outlet. The law explicitly notes that this room cannot be a restroom or toilet stall. If the designated room or location is not solely for the use of an employee to express breast milk, then the room or location must be made available to the employee when needed and cannot be used for any other purpose while in use by a nursing employee. Additionally, if there is access to a refrigerator in the workplace then the employer will be required to allow nursing employees to store expressed milk there.

The amended law provides that if the requirement to designate a room or other location as a lactation room imposes an undue hardship on an employer then the employer must still make “reasonable efforts” to provide such a space. The requirement to designate a room or location for lactation would impose an undue hardship on the employer by causing “significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” The employer must still, however, comply with the requirement of providing the employee with breaktime.

Finally, the New York State Department of Labor (“NY DOL”) will publish a written policy concerning the rights of nursing employees in the workplace. This policy will: (1) inform employees of their rights under the amended law; (2) specify how an employee may request a room or location to express breast milk; and (3) require employers to respond to requests for a room or location to express breast milk in no more than five business days. Employers will be required to provide this notice to each employee upon hire, annually, and to employees returning to work following the birth of a child. The written policy requirement under NYC law requires additional detail, so employers with locations in NYC should be mindful that their lactation policies must still comply with both laws.

Employer Takeaways

Employers should review any policies they may have related to break time and lactation rooms to ensure compliance with applicable federal, state and local law. Employers should also review their reasonable accommodation policies and practices to ensure they are properly addressing and providing reasonable accommodations related to pregnancy, childbirth, or related medical conditions.  Employers should be particularly mindful of the PWFA’s generous protections related to an employee’s ability to perform the essential functions of their job.

Employers should also ensure that they comply with all required notice provisions under these laws. The Firm will continue to monitor developments related to these laws, including when the NY DOL publishes its written policy concerning the rights of nursing employees in the workplace and when the EEOC issues its regulations providing examples of reasonable accommodations that address known limitations related to pregnancy, childbirth, and related medical conditions. Employers with questions about any of these laws should contact Caroline Secola at csecola@fglawllc.com or any attorney at the firm.

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