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Federal laws expand protections for pregnant, lactating workers

pregnant worker

Two federal laws signed by President Biden in December that require employers to accommodate pregnant and lactating women will broaden protections for workers who are not covered by similar state laws and provide more clarity to employers, experts say.

The Pregnant Workers Fairness Act, which goes into effect June 27, requires employers with at least 15 employees to provide reasonable, temporary accommodations to pregnant employees with limitations related to pregnancy, childbirth and related medical conditions.

The Providing Urgent Maternal Protections for Nursing Mothers Act, which took immediate effect, requires employers with at least 50 employees to provide lactating facilities that are not a bathroom, and reasonable break times.

Both bills received rare bipartisan support in Congress. The U.S. Equal Employment Opportunity Commission is expected to issue PWFA-related regulations later this year and the U.S Department of Labor is expected to issue PUMP Act-related regulations around March.

Observers say that about 30 states already have comparable laws in place, which in some cases go beyond the federal laws. The new laws plug holes in existing legislation and expand requirements to states that do not already have legislation in place.

“It sort of leveled the playing field” with respect to pregnancy-related accommodations, said Lynne Anne Anderson, a partner with Faegre Drinker Biddle & Reath LLP in Florham Park, New Jersey.

Many employers already try to accommodate pregnant and lactating workers, experts say.

“I don’t think it’s a leap from what employers are already doing,” said Jessica Thaller-Moran, a partner with Brooks, Pierce, McLendon, Humphrey & Leonard LLP in Raleigh, North Carolina.

Employers in states without comparable provisions will be the most affected by the federal laws, said William Pokorny, a partner with Franczek P.C. in Chicago.

The federal laws will “dramatically” expand rights of pregnant and nursing employees to a larger set of employers, said plaintiffs attorney Melinda Koster, a partner with Sanford Heisler Sharp LLP in New York.

Experts say the PWFA adopts its definition of “reasonable accommodations” from the Americans with Disabilities Act. Previously, employers were only obligated to accommodate pregnant workers whose pregnancy, childbirth or related conditions could be considered a disability.

In situations where, for instance, a pregnant woman might need to take a break because of pregnancy-related nausea but did not have a disability, employers were not required to accommodate her, said Becky L. Kalas, a partner with Ford Harrison LLP in Chicago.

“It was kind of a gray area,” where employers were governed just by the Pregnancy Discrimination Act of 1978, which prohibits discrimination “but doesn’t really require reasonable accommodations,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.

The ambiguities left employers uncertain as to when they were obligated to make the same accommodations for pregnant women as they did for people with disabilities or work-related injuries, she said.

The law makes it clear there is a pregnancy accommodation obligation, Ms. Shea said.

An employee who cannot perform the essential job functions, even with a reasonable accommodation, is not protected under the ADA. The PWFA differs from the ADA in that pregnant workers who may be unable to perform an essential job function, such as lifting 40 or 50 pounds, are still protected, because pregnancy is a temporary condition, said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

The PUMP Act expands federal law to include protection for lactating salaried workers who are exempt from overtime under the Fair Labor Standards Act. They were previously not protected under the FLSA because of an inadvertent loophole, Mr. Phillis said.

Observers say employers should train managers and human resources personnel on the laws’ provisions.

“Employers need to take a look at their policies and make sure that they include pregnancy and childbirth-related conditions as a basis under which employees are entitled to request and be provided reasonable accommodations,” Ms. Anderson said.

“I suspect there will be the need to update policies and procedures, particularly where the law may not have been in place before,” Ms. Kalas said.