Tag: pregnancy accommodation law

Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act

The new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023 on Dec. 29, 2022.

PWFA: Pregnancy Finally Given Disability-Like Protection

The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

Like the Americans with Disabilities Act (ADA), the PWFA includes the obligation to provide reasonable accommodations so long as they do not impose an undue hardship. Many courts have determined that pregnancy alone was not a disability entitled to accommodation under the ADA. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions.

The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process that will typically be used to determine an appropriate reasonable accommodation.

The PWFA provides that an employee or their representative can make the employer aware of the employee’s limitations. It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided. Of course, that does not mean the employee gets the accommodation of their choice. The statute provides a defense to damages for employers that, in good faith, work with employees to identify alternative accommodations that are equally effective and do not cause an undue hardship.

Practical Advice for PWFA Compliance

  1. Employers do not have to have a policy for every rule or practice that applies in the workplace. However, if an employer has a reasonable accommodations policy, that policy should be reviewed and updated, as necessary.
  2. Human resources professionals are not the only ones who need training. If managers are not trained as well, they may unwittingly say something in response to an employee’s question that is inconsistent with your policies and practices.
  3. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process should be similar to the ADA process, including requesting supporting documentation from the treating healthcare provider. Have employees in states or cities that have adopted versions of the pregnant workers fairness law or other similar laws that are more generous than the federal PWFA? The federal PWFA does not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located. As an example, some city and state laws, except in specific circumstances, prohibit employers from requesting medical documentation to confirm an employee’s pregnancy, childbirth, or related medical conditions as part of the accommodation process.
  4. Like under the ADA, when an employee requests an accommodation under the PWFA, Human resources professionals should think about how to make this work, not this will never work. This simple shift in approach makes finding a reasonable accommodation that does not impose an undue hardship on operations more likely.

PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The employer obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom) continues.

Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. The changes to remedies will take effect on April 28, 2023.

What Changed Under PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act covers all employees, not just non-exempt workers. The break time may be unpaid unless otherwise required by federal or state law or municipal ordinance. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk.

With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a suit.

Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense. Crewmembers of air carriers are exempted from the law. Rail carriers and motorcoach services operators are covered by the law, but there are exceptions and delayed effective dates for certain employees. No similar exemption is provided for other transportation industry employers.

Practical Advice for PUMP for Nursing Mothers Act Compliance

  1. Educate the HR team and front-line managers on the update to the law and refresh them on the process for providing break time and private spaces to express breast milk.
  2. Like the PWFA, the law does not preempt state law or municipal ordinances that provide greater protection than provided by the PUMP for Nursing Mothers Act. Depending on where employees are located, policies, practices, and the private space provided to express breast milk may need to be modified.
  3. Creativity is the key to being able to come up with staffing solutions and private spaces for nursing mothers to express breast milk. Nothing in the law requires employers to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing breast milk and made available when needed by a nursing mother is sufficient if the space is shielded from view and free from intrusion from coworkers and the public. In other words, allowing an employee to use an office with a door that locks would be convenient, but not practical for many worksites. Depending on the workplace settings, privacy screens, curtains, signage, portable pumping stations, and partnerships with other employers to provide private spaces for nursing mothers are all possibilities.

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Jackson Lewis P.C. © 2023

Philadelphia Enacts Pregnancy Accommodation Law

Morgan Lewis

 

An amendment to the city’s ordinance enhances protections for nondisabled employees affected by pregnancy or childbirth and imposes greater accommodation requirements on employers.

On January 20, Philadelphia Mayor Michael Nutter signed an amendment[1] to the city’s Fair Practices Ordinance (Chapter 9-1100 of The Philadelphia Code), expressly banning discrimination based upon pregnancy, childbirth, or a related medical condition and imposing new workplace accommodation requirements on Philadelphia employers. The amendment places Philadelphia among a growing number of jurisdictions that require employers to provide workplace accommodations to employees who are “affected by pregnancy,” regardless of whether those employees are “disabled.”

Impact of the Amendment

Unlike its federal and state counterparts—the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the Pennsylvania Human Relations Act—Philadelphia’s amended ordinance actually compels employers to make reasonable workplace accommodations for female employees “affected by pregnancy”—i.e., women who are pregnant or have medical conditions relating to pregnancy or childbirth—regardless of whether those employees have been “disabled” by the pregnancy. The ordinance identifies a number of possible accommodations that may be required, including restroom breaks, periodic rest for those whose jobs require that they stand for long periods of time, special assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

This new law imposes a significant burden on employers, requiring that they grant the requested accommodations unless doing so would impose undue hardship on the operation of the employers’ businesses. The factors to be considered in the undue hardship analysis include the following: (a) the nature and cost of the accommodations; (b) the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; (c) the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type, and location of its facilities; and (d) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer.

Perhaps the most significant aspect of the amendment is that it extends privileges to employees affected by pregnancy that are unavailable to other employees, including many disabled employees. For example, the law requires an employer to consider job reassignment and job restructuring for pregnant employees, even though these types of accommodations are generally not required for disabled employees under state or federal law. As such, employers with operations in Philadelphia (along with those in other jurisdictions that have recently passed heightened pregnancy accommodation laws like California,[2]Maryland,[3] New Jersey,[4] and New York City[5]) should revisit their existing reasonable accommodation policies to ensure that they are providing required accommodations for pregnant workers—even those who are healthy and not incapacitated by the pregnancy.

From a litigation perspective, the law specifies the affirmative defenses that will be available to employers facing claims under the amended ordinance. In addition to the undue-burden defense described above, an employer will have an affirmative defense if it can show that the employee “could not, with reasonable accommodations, satisfy the requisites of the job.” This language is important because it will allow employers to continue managing the performance of pregnant workers who, even with accommodation, simply cannot perform their jobs. Nonetheless, the impact of this affirmative defense remains to be seen given the amendment’s language suggesting that job restructuring and reassignment may be required accommodations.

Employees aggrieved by a violation of the amended ordinance are entitled to the same remedies that are available for other unlawful employment practices—including injunctive or other equitable relief, compensatory damages, punitive damages, and reasonable attorney fees. Additionally, certain factual scenarios, such as a failure to properly respond to a request for accommodations (e.g., lactation breaks or nursing an infant), may trigger a pregnancy accommodation cause of action, as well as causes of action under the Fair Labor Standards Act and/or Title VII.[6]

As mentioned above, the amendment places Philadelphia squarely in the middle of a significant legislative trend that has been gaining momentum. In the last 18 months, California, Maryland, New Jersey, and New York City have passed similar pregnancy accommodation laws. Several other jurisdictions are, or will soon be, considering comparable legislation. The West Virginia House of Representatives unanimously passed a similar bill on February 5, 2014, and Pennsylvania legislators announced in December 2013 that they will be introducing Pennsylvania’s Pregnant Workers Fairness Act in the near future. In addition, a federal version of the Pregnant Workers Fairness Act was introduced in the U.S. Senate in May 2013 but stalled in committee. Several other states—including Alaska, Connecticut, Hawaii, Illinois, Louisiana, Michigan, New Hampshire, and Texas—already require some type of pregnancy accommodation.

Notice Requirement

The new law requires that Philadelphia employers provide written notice—in a form and manner to be determined by the Philadelphia Commission on Human Relations—by April 20, 2014. The notice must be posted conspicuously in an area accessible to employees.

Moving Forward

For employers with operations in Philadelphia, the amendments to the Fair Practices Ordinance may signal that now is the time to revisit or revamp employee handbooks and train human resources and benefits employees on the new requirements in this area. Specifically, the amended ordinance will require most Philadelphia employers to overhaul their reasonable accommodation policies and train human resources professionals and managers regarding when the interactive process is triggered for employees affected by pregnancy, what steps must be followed to ensure effective engagement in that process, and when accommodations must be granted for such employees.

[1]. View the amendment here.

[2]. See our December 28, 2012 LawFlash, “New California Disability Regulations to Become Effective December 30,” available here.

[3]. See our July 1, 2013 LawFlash, “Maryland Enacts Three New Employment Laws,” available here.

[4]. See our January 10, 2014 LawFlash, “New Jersey Assembly Passes Pregnancy Discrimination Bill,” available here, and our January 27, 2014 LawFlash, “New Requirements for New Jersey Employers,” available here.

[5]. See our September 27, 2013 LawFlash, “New York City Offers Greater Protections for Pregnant Workers,” available here.

[6]. See our June 12, 2013 LawFlash, “New Developments Surrounding Lactation Discrimination,” available here.

Article by:

Sean P. Lynch

Of:

Morgan, Lewis & Bockius LLP