Two federal laws signed by President Biden in December requiring employers to accommodate pregnant and breastfeeding women will broaden protections for workers not covered by similar state laws and provide more clarity for employers, experts say.
The Pregnant Workers Fairness Act, which takes 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 Act to Provide Emergency Maternity Protection for Nursing Mothers, which took effect immediately, requires employers with at least 50 employees to provide breastfeeding facilities other than a bathroom and reasonable breaks.
Both bills received rare bipartisan support in Congress. The US Equal Employment Opportunity Commission is expected to issue PWFA-related regulations later this year and the US Department of Labor is expected to issue PUMP Act-related regulations around March.
Observers say about 30 states already have comparable laws in place, which in some cases go beyond the federal laws. The new laws close gaps in existing legislation and expand requirements for states that do not already have legislation in place.
“It kind of leveled the playing field”
; with regard to pregnancy-related accommodations, said Lynne Anne Anderson, a partner with Faegre Drinker Biddle & Reath LLP in Florham Park, New Jersey.Many employers are already trying to accommodate pregnant and breastfeeding workers, experts say.
“I don’t think it’s a step 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 regulations will be the most affected by the federal laws, said William Pokorny, a partner with Franczek PC in Chicago.
The federal laws will “dramatically” expand the rights of pregnant and breastfeeding employees to a larger set of employers, said plaintiff 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 required to accommodate pregnant workers whose pregnancy, childbirth or related conditions could be considered a disability.
In situations where, for example, a pregnant woman might need to take time off because of pregnancy-related nausea but didn’t have a disability, employers weren’t 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 only regulated 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 unsure when they were required 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 that there is an obligation to live during pregnancy, 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 not be able 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 at Littler Mendelson PC in Pittsburgh .
The PUMP Act expands federal law to include protections for nursing employees who are exempt from overtime under the Fair Labor Standards Act. They were previously not protected under the FLSA because of an unintended loophole, Mr. Phyllis.
Observers say employers should train managers and staff on the laws’ provisions.
“Employers need to take a look at their policies and make sure they include pregnancy and childbirth-related conditions as a basis under which employees have the right to request and receive reasonable accommodations,” Anderson said.
“I suspect there will be a need to update policies and procedures, especially where the law may not have been in place before,” Kalas said.
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