New Federal Worker Protections Cover Pregnant Employees and Nursing Mothers

This year, a large and essential part of Ohio’s workforce will benefit from new protections while on the job, thanks to a pair of new federal laws that assure employers will provide accommodations to workers who are pregnant or nursing.

In several ways, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) reinforce existing federal and Ohio laws, but the acts, signed into law by President Joe Biden in December 2022, are more specific, tailored and robust.

“It filled an important gap in federal protection by requiring [employers] to make reasonable accommodations for pregnant women and … new moms, like letting them have water breaks, bathroom breaks, ‘sit down and work’ breaks,’ ” Biden said in remarks in February, adding, “Too many women have been denied … simple, basic support.”

Taken in tandem, the acts promise to be transformative for pregnant or nursing people seeking such accommodations at their place of work. Laws already on the books did not address those needs, or did so in a roundabout way, including the Pregnancy Discrimination Act of 1978, which amended the Civil Rights Act of 1964 that bars employment discrimination due to race, color, religion, sex or national origin.

“Under federal law traditionally, pregnancy claims fell under sex discrimination claims under Title VII, which is not always an easy argument to make considering that you have to show that a pregnant female worker was treated differently than a male comparator, which obviously is very hard to do,” says Rachel Sabo Friedmann, an employment attorney with the Friedmann Firm in Hilliard, referring to the section of the Civil Rights Act. She notes that the Ohio Revised Code has a similar Ohio employment-discrimination law.

Pregnant workers whose employers failed to provide accommodations could also make use of the Americans with Disabilities Act, but that, too, was imperfect: Pregnancy is not akin to disability, though it can give rise to “impairments … that qualify as a ‘disability’ under the ADA,” the U.S. Equal Employment Opportunity Commission says.

“Prior to this, we would have to make pretty creative arguments about pregnancy somehow rising to the level of a disability,” says Sabo Friedmann, whose firm represents aggrieved employees.

By contrast, the PWFA tackles the issue squarely and closes loopholes. When it goes into effect on June 27, the law will apply to all employers with at least 15 employees, as well as federal agencies, Congress, employment agencies and labor organizations.

“It provides more protection for pregnant workers,” Sabo Friedmann says. “The PWFA makes it unlawful for an employer not to make a reasonable accommodation to known limitations related to pregnancy, childbirth or medical conditions related to pregnancy.”

According to the EEOC, pregnant workers are entitled to request a range of accommodations, provided that they do not cause their employer an “undue hardship.” As examples of possible accommodations, the commission mentions pregnant employees being able to park closer to their place of work or being given uniforms appropriately sized to account for the physical changes of pregnancy.

“The accommodations that might be readily asked for can be something as simple as a water bottle [or] if I’m normally standing at a position, I need to have a stool to rest,” says Brad E. Bennett, an employment and labor attorney at Bricker Graydon.

Mental-health issues, such as an anxiety disorder that arose from a pregnancy, also would qualify for accommodations, Sabo Friedmann says.

Employers familiar with requests under the ADA should readily adjust to the PWFA, Bennett says. In both cases, an “interactive process” involves a worker describing what is needed and, if reasonable, an employer making the accommodation. “That concept really has been lifted out of the ADA and placed into … the PWFA,” he says, adding that an employee does not have to say any “magic words” in asking for an accommodation.

“They can actually come to their employer and state, ‘Hey, here’s what I’m going to be needing,’ ” Bennett says. “That opens up the interactive process where both sides have to interact and communicate and work together to find that reasonable accommodation.”

The city of Columbus sees the new acts as complementary to accommodations it already offered employees. “We’ve had an executive order for several years and it was updated in 2018, which really is exactly what is written in the PUMP Act,” says Nichole M. Brandon, director of the Department of Human Resources at the city. “After having the interactive process with the employee [who] indicates some of the accommodations that they need … we’d make the necessary accommodations.”

Ahead of the PWFA coming into effect, Bennett recommends that employers review their policies-and-procedures manuals and train managers and HR representatives on the requirements.

If a pregnant worker feels that their needs are not being met after discussions with their employer or HR department, the PWFA offers a process whereby concerns can be addressed. “You would do the same thing that you’d do if there’s a violation of the ADA or Title VII: File a charge of discrimination with the EEOC,” says Sabo Friedmann, adding that, for pregnant workers currently employed, the EEOC offers mediation in the hope of resolving the issue. “If you want the right to sue immediately, you can request it,” she says.

Some employers might find granting accommodations trickier than others. “If you’re working on an assembly line where it doesn’t stop moving, and then you have employees who need more frequent break times, that can be a little more difficult to manage,” says Bennett, adding that manufacturing companies accustomed to ADA-related accommodations should not have too much difficulty navigating the PWFA.

PUMP Act Provisions

While the PWFA encompasses workplace accommodations during the period of pregnancy and childbirth, the PUMP Act governs a mother’s rights after a child’s birth. The act, which went into effect in December and has had an enforcement provision in force since April 28, requires that employers grant nursing mothers break times to pump milk for the first year after a child is born.

“The purpose of the PUMP Act is to close loopholes and what we’ll call unintentional mistakes that were in the 2010 bill,” Sabo Friedmann says, referring to a provision providing for break time for nursing mothers in the Fair Labor Standards Act for nonexempt employees. “[That] protection only extended to hourly workers who qualified for overtime pay.”

By contrast, the PUMP Act brings exempt workers into the fold. “It includes salaried workers, such as teachers and nurses, a lot of whom are women,” says Sabo Friedmann.

Under the new act, mothers have the right to be provided with a private space, outside the view of co-workers or others, while taking lactation breaks; restrooms are not eligible spaces. “If [employers] don’t have a space like that, they need to figure out how to provide it,” Sabo Friedmann says.

That may prove to be more of a challenge for some categories of employers than others. “If somebody works on a road crew or in a construction environment out on a job site where there isn’t a very sanitary, private place to dispense breast milk, that can be a challenge,” Bennett says.

Pregnant workers and new mothers should feel confident about asking for the protections assured under the new acts, Sabo Friedmann says. “Both the PUMP Act and the PWFA prohibit employers from retaliating against employees for asserting their rights under either law,” she says, noting that termination and demotion constitute forms of retaliation.

Employers with fewer than 50 employees in their ranks can avoid being subject to the PUMP Act if complying with it amounts to an “undue hardship,” according to the U.S. Department of Labor Wage and Hour Division, which enforces the FLSA. But Sabo Friedmann cautions businesses to tread carefully: “Undue hardship is analyzed on a case-by-case basis. Realistically, any employer should probably pay very close attention to a request under the PUMP Act and really figure out if this is an undue burden on us or not. And if it’s not, then they should grant it.”

Peter Tonguette is a freelance writer.

This story is from the Summer 2023 issue of Columbus CEO.