The Pregnant Workers Fairness Act was signed into law by the President in December 2022, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act was adopted along with it. Recent federal publications have outlined some employer responsibilities with respect to each.
As of June 27, 2023, employers will have to provide pregnant employees with protections similar to those provided under the Americans with Disabilities Act (“ADA”). Employers with 15 or more employees will have to make reasonable accommodations, so long as there is no undue hardship on business operations, for known limitations related to pregnancy, childbirth, or related medical conditions. Like any request made under the ADA, an interactive process between the employer and employee must occur, and FAQs issued by the Equal Employment Opportunity Commission (“EEOC”) provide some guidance on what accommodations may be required, such as:
- Allowing an employee to sit or drink water;
- Providing closer parking;
- Flexible hours;
- Additional break time to use the bathroom, eat, and rest; and/or
- Restructuring of duties to avoid strenuous activities and/or activities not safe for pregnancy.
Additionally, a recent U.S. Department of Labor Wage and Hour Division bulletin provides parameters related to the potential enforcement of the PUMP Act.
Specifically, the agency-directed guidance provides:
- Employees are entitled to breaks every time they need to pump, and employers cannot mandate adherence to a schedule. The needs of the employee take precedence, and the frequency and length of each break may vary as a result. Whether or not the breaks are paid depends on, among other things, other federal, state, and local laws.
- Employees must have access to a space for pumping that is shielded from view, free from intrusion by any person, available when needed, and not a bathroom. The space must have a place for the nursing employee to sit, a flat surface (that is not the floor) for placement of the pump and, if possible, an electrical outlet for an employee to use to plug in a pump and a sink for washing up. Employees must be able to safely store milk in an insulated food container, personal cooler, or refrigerator.
- The updated Fair Labor Standards Act Poster should be utilized (as it contains new PUMP at Work information).
Employers with fewer than 50 U.S. employees may be exempt from these requirements if they can show an undue hardship in compliance (looking at expense, financial resources, nature, and structure of the employer’s business).
Of course, as with the enforcement of all employee rights, there can be no retaliation against an employee who engages in pumping activity or requests an accommodation related to pregnancy or childbirth.
New York State has its own laws related to employees’ rights during and after childbirth, with which employers in New York must comply, including the right to express breast milk with access to a specific, designated room for such.
We are here to help. Please contact us with any questions.
 See: https://www.eeoc.gov/pregnancy-discrimination
 Field Assistance Bulletin No. 2023-02: www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf
 See: https://www.dol.gov/agencies/whd/posters/flsa.
 See: https://dol.ny.gov/system/files/documents/2023/03/ls702.pdf.