By Michael Burns, courtesy of SBAM-approved partner ASE
With the enactment of both the Pregnant Workers Fairness Act (PWFA) effective June 27, 2023, and the Nursing Mothers Act also known as the PUMP Act, covered employers should consider adding new policies to communicate compliance and inform employees what they are providing them as a result of those laws.
Under the PWFA, employers over 15 employees must make reasonable accommodations to limitations related to pregnancy, childbirth, or related medical conditions. Though this sounds a lot like the protections afforded under the Americans with Disabilities Act (ADA) it is different in many respects – com a separate policy.
Employers may want to add a PWFA policy in the section of the handbook with other equal employment opportunity policies (EEO, ADA, GINA) or in the section of the handbook where employment laws and compliance are addressed.
Below is a sample policy:
Pregnancy Workers Fairness Act
As required by the federal Pregnant Workers Fairness Act (PWFA), ABC Company will provide reasonable accommodations to employees and applicants with limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause undue hardship to the organization’s operations.
Pregnant Workers Fairness Policy
An employee or applicant may request accommodation due to pregnancy, childbirth, or a related medical condition by submitting the request in writing to human resources (HR). The accommodation request should include an explanation of the pregnancy-related limitations, the accommodation needed, and any alternative accommodation(s) that might be reasonable. Depending on the nature of the accommodation, the individual may be requested to submit a statement from a health care provider substantiating the need for the accommodation.
Upon receipt of a request for accommodation, HR will contact the employee or applicant to discuss the request and determine if accommodation is reasonable and can be provided without significant difficulty or expense, i.e., undue hardship.
An employee may request paid or unpaid leave as a reasonable accommodation under this policy; however, ABC Company will not require an employee to take time off if another reasonable accommodation can be provided that will allow the employee to continue to work.
ABC Company prohibits any retaliation, harassment or adverse action due to an individual’s request for accommodation under this policy or for reporting or participating in an investigation of unlawful discrimination under this policy.
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP) was passed in December 2022 as part of the Consolidated Appropriations Act of 2023 and amends the Fair Labor Standards Act (FLSA). This law went into effect on April 28, 2023. This law affects most all employers, but if the employer is less than 50 employees they may be exempt from full compliance if it would impose an “undue hardship by causing significant difficulty or expense when considered in relations to the size, financial resources, nature or structure of the business.”
Below is a sample policy:
Lactation/Nursing Policy
ABC Company accommodates mothers who choose to continue breastfeeding after returning to work. Breastfeeding is a normal part of daily life for mothers and infants. Federal law entitles a lactating employee to a reasonable break to express breast milk for her nursing child each time the employee needs to express milk. ABC Company protects a mother’s right to breastfeed for one year after the child’s birth.
ABC Company allows sufficient break time for breastfeeding employees to express milk at work. Supervisors are encouraged to consider flexible schedules to accommodate an employee’s needs. These breaks will be [specify paid or unpaid].
ABC Company provides a private place (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public for an employee to use when expressing breast milk. If possible, the private space will be close to the employee’s work area and include an electrical outlet for the use of an electric breast pump. If possible, supervisors will ensure that employees are aware of these workplace accommodations prior to maternity leave.
If an employer is covered by the law, a formal employee handbook policy is not required but it is advisable. Further, the FLSA will be updating their posting requirements for the PWFA shortly.
Source: CCH HR Answers Now. Reasonable Accommodations Related to Pregnancy and Break Time for Nursing Mothers.