The federal Pregnant Workers Fairness Act (PWFA) requires employers to make temporary reasonable accommodations for pregnant workers

Cookeville – Two new laws contained in the $1.7 trillion spending package entitled the “Consolidated Appropriations Act of 2023” (“CAA”) provide protection for pregnant and breastfeeding employees beyond existing protections.

The purported goal of these two laws was to fill in gaps in existing laws made evident in recent Court decisions such as EEOC v. Wal-Mart, which held that Wal-Mart’s light duty policy offered only to employees injured on the job (thus denying similar accommodations to all pregnant employees) violated neither Title VII of the Civil Rights Act of 1964 nor the Pregnancy Discrimination Act. EEOC v. Wal-Mart, No. 21-01690 (7th Cir. 2022).

Much like the Americans with Disabilities Act (ADA), the federal Pregnant Workers Fairness Act (PWFA) requires employers to make temporary reasonable accommodations for pregnant workers, such as providing extra bathroom breaks or physical accommodations such as a stool or chair for a pregnant employee. This law covers employers with 15 or more employees. The PWFA requires employers to provide such accommodations to the “known limitations” of qualified employees who have conditions related to pregnancy, childbirth or related medical conditions whether or not such conditions meet the definition of disability under the ADA.

Covered employers are prohibited from requiring qualified employees to accept an accommodation other than a reasonable accommodation arrived at through the interactive process and prohibits employers from requiring a leave of absence (whether paid or unpaid) if another reasonable accommodation can be provided. The PWFA takes effect June 27, 2023 and provides remedies for violations which are the same as Title VII, i.e., damages, reinstatement, attorneys fees, etc. During 2023, the EEOC is expected to issue regulations regarding compliance with the PWFA.

Also included in the CAA is the Providing Urgent Maternal Protections (or “PUMP”) for Nursing Mothers Act. This Act is very similar to Tennessee Code §50-1-305, and it amends the Fair Labor Standards Act by requiring employers to provide reasonable break time for lactating employees, including a place for such lactation to take place, which, like the Tennessee law, cannot be a bathroom and must be private. The break time does not have to be compensated unless the employee is expected to perform work duties during the break time.

The PUMP Act took effect December 29, 2022, but the ability for employees to file complaints based on violations is not effective until April 2023. Unlike Tennessee’s law, (which provides employers will be held harmless if they have made a good faith effort to comply), the remedies available to employees under PUMP are the same as under the FLSA (back/front pay, reinstatement and liquidated damages); however, before suing the employer, the employee must give the employer a 10-day opportunity to cure an alleged failure to comply. The notice requirement is waived in the event the employee has been terminated or if the employer has refused to comply.  

There is a small employer exemption from the PUMP Act for employers with less than 50 employees if the employer can establish that compliance with the law would create undue hardship due to significant difficulty or expense, but bear in mind that exemption does not affect the Tennessee law already in effect for employers with one (1) or more employees, which requires Tennessee employers to provide accommodations for nursing mothers in the workplace (Tenn. Code Ann. §50-1-305). Tennessee employers with 15 or more employees are also prohibited from discrimination with respect to pregnancy, childbirth and related medical conditions under the Tennessee Pregnant Workers Fairness Act, (TPWFA) which took effect Oct. 1, 2020 (Tenn. Code Ann. §50-10-102); the law also provides remedies for employees who are adversely affected by violations of the law.

Employers subject to the PWFA and the PUMP Act should plan ahead by considering what solutions and accommodations would be available to covered employees. Employers may want to consider updating ADA-accommodation policies and/or pregnancy-related policies to address these recent laws and of course, it is advisable to work with experienced employment attorneys in doing so.

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