New Workplace Protections For Pregnant And Nursing Moms

The Consolidated Appropriations Act of 2023 (“CAA”) (the $1.7 trillion government funding bill) includes provisions that provide Federal workplace protections for pregnant and nursing moms.[1] When President Biden signed the CAA on December 29, 2022, two new laws went into effect:  the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act took effect immediately, while the PWFA will not go into effect until June 2023. Some of the key questions Iowa employers may have are answered below.

What are an Employer’s Obligations under the Pregnant Workers Fairness Act (PWFA)?

The PWFA prohibits employers with 15 or more employees from discriminating against pregnant employees and pregnant applicants with “known limitations” related to their pregnancy, child birth, or “related medical conditions.” The PWFA also requires such employers to provide reasonable accommodations to pregnant employees and pregnant applicants with “known limitations” so long as the accommodations do not impose an undue hardship on the employer (the definitions of “reasonable accommodation” and “undue hardship” under the PWFA are the same as the definitions under Americans with Disabilities Act).  

The PWFA broadly defines “known limitations” as “physical or mental condition[s] related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified in Section 3 of the Americans with Disabilities Act.”  The EEOC will enforce the PWFA and has been tasked with issuing guidance related to the PWFA. 

While employers wait for the EEOC to issue specific guidance related to the definition of “known limitations,” employers should be prepared to accommodate pregnant employees and applicants with health conditions ranging anywhere from preeclampsia to pre-term labor to postpartum depression, even if such conditions do not meet the definition of a disability under the ADA.  Under the PWFA, employers are required to use the interactive process—similar to that under the Americans with Disabilities Act—to determine an appropriate accommodation for the pregnant employee or applicant. Notably, employers cannot require a pregnant employee or pregnant applicant to take a leave of absence—paid or unpaid—if another reasonable accommodation can be provided. 

The PWFA further prohibits employers from retaliating against a pregnant employee or pregnant applicant on the account of the individual requesting or using a reasonable accommodation. 

What are an Employer’s Obligations under the PUMP Act?

The PUMP Act amends the Fair Labor Standards Act (FLSA) to require employers with 50 or more employees to provide reasonable break time for all employees, including salaried (exempt) employees, to express breast milk as needed for up to one year after the birth.  Previously, the Fair Labor Standard Act only provided such rights to non-exempt employees. 

The PUMP Act reiterates that employers must provide nursing mothers with a private location— other than a restroom—to express milk. 

Whether an employer is required to pay an employee for the time they spend pumping depends on whether the nursing employee is an exempt employee or non-exempt employee.  Under the FLSA, employers are required to pay exempt employees a fixed weekly salary that is not reduced based on the quality or quantity of the employee’s work. While the FLSA allows employers to deduct the pay of exempt employees in certain limited situations, there is currently no provision that would allow an employer to deduct the pay of an exempt employee for taking breaks to express breast milk.  For this reason, employers must pay exempt employees for breaks to express milk. 

For hourly employees, the answer depends on the employer’s break policy.  If an employer pays its other employees to take reasonable breaks from work, employers should also pay nursing employees to take the same amount of breaks to express milk.  For example, if an employer provides two paid 15-minute breaks to all of its full-time hourly employees, it should provide full-time nursing employees with two paid 15-minute breaks, which can be used to express milk.  If nursing employees need additional breaks to express milk (e.g., breaks beyond the two paid 15-minute breaks given to all employees like the example above), then the employer would not be required to pay nursing employees for those breaks.  However, to avoid paying a nursing employee to express milk, employers must ensure the nursing employee is completely relieved from work during the entirety of such break.  If a nursing employee is still working while expressing milk (e.g., watching training videos, responding to emails, taking phone calls, etc.), the employer must pay the employee for the time taken to express milk. 

The PUMP Act provides an exception for small employers.  An employer that employs less than 50 employees is not required to comply with the requirements under the PUMP Act if such requirements would cause 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 exempt from the law, and there are certain exceptions for rail carriers and motor coach services. 

What are the Penalties for Violations of the PWFA and the PUMP Act?

The penalties for violating the PWFA are the same as those for violating Title VII.  Aggrieved employees and applicants can complain to the EEOC, and file a lawsuit in court once the individual receives a right-to-sue letter from the EEOC.  Damages available include compensatory damages, punitive damages, and attorney’s fees. 

The penalties for violating the PUMP Act are the same as those for violating the FLSA. Aggrieved employees can complain to the federal Wage and Hour Division of the Department of Labor, or file suit in court. Damages available include unpaid minimum wage and overtime compensation, an equal amount of liquidated damages, other applicable legal or equitable relief (e.g., reinstatement, promotion), and attorneys’ fees and costs of litigation. Collective actions (similar to class actions) for violations of the PUMP Act may also be brought. Civil monetary penalties can be assessed for repeat or willful violations. Criminal fines may also be assessed against employers. 

Impact on Iowa Employers?

The Iowa Civil Rights Act already prohibits employers with four or more employees from discriminating against pregnant employees.  The Iowa Civil Rights Act also requires employers with four or more employees to treat disabilities caused or contributed to by pregnancy, miscarriage, childbirth, and recovery therefrom as temporary disabilities.  As the Iowa Supreme Court stated in 2015, Iowa’s protections for pregnant workers are “intended to provide institutional protection by placing pregnant employees who become unable to complete their job duties due to a pregnancy-related disability on equal footing with other employees who become unable to perform their regular job duties because of any other temporarily disabling bodily condition.” McQuistion v. City of Clinton, 872 N.W.2d 817, 829 (Iowa 2015).  In other words, Iowa law already required employers to provide the same accommodations for a pregnant worker as an employer provided to other employees unable to perform their regular job duties on a temporary basis.  The new federal laws do not preempt Iowa law. 

While the new federal laws certainly protect pregnant employees and new moms, and expand protection to health conditions that may not be disabilities, the law for Iowa employers remains almost unchanged.  Employers should not treat pregnant employees, pregnant applicants, or new moms differently than other employees unless the employer has a legitimate non-discriminatory reason for doing so.