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1 1 (April 28, 2023)

handle is hein.crs/govellh0001 and id is 1 raw text is: Congressional Research Service Informing the legislative debate since 1914 April 28, 2023 New Federal Protections for Pregnant and Nursing Workers Several federal laws protect workers during nursing and pregnancy, but two new federal laws, passed as part of the Consolidated Appropriations Act of 2023, go into effect this year and expand those protections in certain ways. The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act), Pub. L. No. 117- 328, 136 Stat. 4459 (2022), expands protections for nursing mothers, requiring break time and appropriate facilities for workers to express breast milk. The Pregnant Workers Fairness Act (PWFA), Pub. L. No. 117-328, 136 Stat. 4459 (2022), requires employers to modify workplace rules and conditions where needed to accommodate pregnancy- related limitations, provided that an accommodation is reasonable and does not present an undue hardship to the employer. This In Focus summarizes these two statutes, placing them in context and highlighting the ways they draw on and differ from existing laws. It explains who qualifies for accommodations, what employers must provide, and the limits of employers' responsibilities. In the PUMP for Nursing Mothers Act, Congress expanded existing protections for nursing mothers. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., requires lactation breaks for some nursing mothers. The PUMP for Nursing Mothers Act takes those protections, which previously covered certain overtime-eligible employees, and applies them to nearly all FLSA-covered workers. The new law's substantive requirements largely track the earlier FLSA provisions. They afford qualifying employees break time and a private place (not a bathroom) to express breast milk. The protections apply for one year after a child's birth. Employers need not pay workers for break time designated for pumping, but employees who pump during break times are entitled to compensation on the same terms as those who use their break times for other purposes. The law's enhanced coverage takes effect immediately. Even as amended, the law does not cover certain workers. In particular, employers with fewer than 50 workers need not comply if doing so would impose an undue hardship. An undue hardship is defined in similar terms as Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117, governing workplace disability accommodations: causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. The amendments also expand available remedies. Potential legal and equitable remedies include hiring, reinstatement, promotion, lost wages, and other damages, including punitive damages. These penalties are available for violations after April 28, 2023. The Department of Labor enforces the FLSA, including accepting worker complaints. The act does not address congressional employment or amend the Congressional Accountability Act of 1995 (CAA), which specifies FLSA provisions applicable to legislative employees. The Pregnant Workers Fairness Act (PWFA) The PWFA requires reasonable accommodations for worker limitations arising from pregnancy, childbirth, or related medical conditions. The PWFA does not define this phrase, but the same phrase is also used in Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. (barring discrimination in employment). Courts construing Title VII have held it to cover complications during pregnancy, such as nausea and lifting restrictions; recovery from childbirth including by caesarian section; and postpartum conditions such as depression. Although there is some judicial variation, some courts have concluded that related medical conditions can also include fertility treatment, lactation, and abortion. The PWFA provides that its requirement for reasonable accommodations has the same meaning as in the ADA. Under the ADA, courts have held that a reasonable accommodation is a modification of workplace rules or practices that is feasible or plausible in most cases. Reasonable accommodations for pregnancy might include seating, access to drinking water, bathroom breaks, and light duty. Whether a specific accommodation is required hinges on the facts of each case; reasonableness depends on the employee's limitations and the workplace circumstances. Under the PWFA's terms, and in line with its ADA model, an employer need not provide an accommodation that imposes an undue hardship on business operations. This also requires a case-by-case analysis, considering such factors as the nature and cost of the accommodation, the employer's resources, and the size and function of its workforce. The employer bears the burden of showing an undue hardship once the worker identifies a reasonable accommodation. As with the ADA, the PWFA obliges employers and employees to negotiate in good faith to determine appropriate accommodations. ADA case law has not produced bright-line rules governing the fact-specific, individualized assessment of what constitutes a reasonable accommodation or an undue burden.

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