Women’s History Month: PWFA and PUMP Act Protections for Pregnant Workers and Nursing Mothers

To round out the celebration of Women’s History Month, the attorneys at Bryant Legal, LLC wanted to highlight two laws that directly affect women, particularly pregnant and breastfeeding employees.

President Biden signed the PUMP for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA) into law on December 29, 2022, along with the Consolidated Appropriations Act, 2023.

As a result of the PUMP Act and the PWFA going into effect, pregnant and nursing employees now have expanded protections in the workplace.

What is the PUMP Act?

The PUMP Act expands the protections of the Fair Labor Standards Act (FLSA) for lactating and nursing employees. The FLSA establishes minimum wage, overtime pay, regular rate of pay, bonuses, recordkeeping, and other wage and hour standards that affect employees. (See 29 U.S.C. § 201, et seq.)

What Protections for Nursing Mothers are Covered by the PUMP Act?

Reasonable Break Time for Nursing Mothers

As a result of the recent enactment of the PUMP Act, the FLSA requires employers with fewer than 50 employees to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time an employee has need to express the milk.

Importantly, employees who work remotely are also eligible for breast pump breaks under the FLSA on the same basis as employees who work at the job site.

In order for an employee to have an appropriate break time to pump breast milk, the employee must be completely relieved from duty or must be paid for the entire break for performing off-the-clock work.

By way of one example, if a nursing mother takes the time to pump breast milk but continues to answer work emails or takes a work phone call during that time, then she must be compensated for that time because she was not completely relieved from duty.

As such, if a nursing mother pumps during an unpaid meal break, then that time should be compensable as it is not a bona fide meal break under the law.

A Private Space to Pump

Additionally, employers must provide a place to breast pump at work that is not a bathroom (“non-bathroom space”) where nursing moms are shielded from view and free from intrusion from coworkers and the public.

What is the PWFA?

With respect to the PWFA, it requires covered employers to provide “reasonable accommodations” to an employee’s limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an “undue hardship.”

What is a Reasonable Accommodation?

Under the PWFA, a reasonable accommodation is one that allows a pregnant employee to be able to perform the essential functions of her job.

For example, an employer might be required to provide accommodations for pregnant employees who have lifting restrictions due to pregnancy.

What is an Undue Hardship?

An undue hardship is an accommodation that causes significant difficulty or expense for the employer.

The employer has the burden of demonstrating that the proposed accommodation causes undue hardship in the particular circumstances, or that the proposed accommodation eliminates an essential function of the job requirement.

“Undue hardship” is a high burden to overcome and generally means that the accommodation requires significant difficulty or expense when considered in light of a variety of factors, including:

1. The nature and cost of the accommodation needed
2. The overall financial resources of the facility
3. The type of operation or operations of the company

Benefits of the PWFA

Expanded Protections for Pregnant Employees

The PWFA allows additional protections for pregnant employees along with the protections of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. (See 42 U.S.C. § 2000e, et seq.)

Before the PWFA, employers were only required to provide accommodations to a pregnant employee whose pregnancy, childbirth, or related medical condition rose to the level of a disability as defined under the Americans with Disabilities Act (ADA), as amended. (See 42 U.S.C. § 12101, et seq.)

Shielded from Retaliation

Furthermore, employees protected by the PUMP Act and the PWFA are shielded from retaliation for engaging in protected activity as defined under the FLSA.

Under the FLSA, an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act….” (See 29 U.S.C. § 215(a)(3)).

Importantly, employees are protected regardless of whether the complaint is made orally or in writing. Additionally, an employer cannot interfere with an employee’s rights under the PUMP Act and PWFA.

For example, if a nursing employee, who is a delivery driver, takes breaks to pump breast milk a few times per day, and then her supervisor complains about how the breaks are interfering with the delivery schedule and, as a result, moves her into a different position that pays less, then this would be considered unlawful retaliation under the FLSA.

Has Your Employer Discriminated Against You for Breastfeeding or Your Pregnancy? Contact Bryant Legal, LLC for a Free Case Consultation

If you believe that you have been discriminated against based on your pregnancy or you have not been paid for reasonable break time to express breast milk, or if have any other questions related to your employment, then contact the employment attorneys at Bryant Legal, LLC for a free and confidential initial consultation.