Pregnant and working moms scored two big victories recently. The first was on Dec. 29, 2022, when the Providing Urgent Maternal Protections for Nursing Mothers Act (or PUMP Act) became law and finally extended protections to almost 9 million working, nursing mothers across the U.S. Not only did this law extend the right to pump at work but it also allows additional remedies for employer violations.
The PUMP Act amended the Fair Labor Standards Act (FLSA) and requires employers to provide nursing mothers with reasonable break time(s) and a private space, other than a bathroom, to express breast milk. The PUMP Act also put the onus on employers to comply with the law, alleviating one less stressor on already overburdened mothers who must carry not only the weight of caring for their child or children, but for themselves.
The second victory, the long-awaited Pregnant Workers Fairness Act (PWFA), went into effect on June 27, 2023. This law requires employers to provide “reasonable accommodations” to pregnant and postpartum workers. This will make it easier for those workers, who often feel the pressure to leave the workforce, to stay and continue working. We are finally seeing a big step forward in the right direction for working mothers who often are overlooked or penalized once their child is born.
This shift in the law is a welcome change given the U.S. is one of the only countries without paid parental leave. In fact, according to a 2019 Pew Research report, “The share of moms who are working either full or part time in the United States has increased over the past half-century from 51% to 72%, and almost half of two-parent families now include two full-time working parents. At the same time, fathers – virtually all of whom are working – are taking on more childcare responsibilities.”
What Exactly Has Changed?
The PUMP Act expands the reach of the FLSA to cover almost all workers, with the exception of certain airlines, railroads, and motor coach carrier employees. Employers with fewer than 50 employees can take advantage of the “undue hardship” exemption – a “significant difficulty or expense” for the employer. However, employers with 50 or more employees do not have this option. The PUMP Act also made clear that pumping time counts as time worked when calculating minimum wage and overtime when a worker is not completely relieved from work duties during the pumping break.
As noted above, the PWFA only applies to accommodations such as additional break times to use the restroom, eat/drink, or rest, taking leave or time off to recover from childbirth, or being excused from certain activities that are not safe for pregnant workers. However, there are other laws that make it illegal to discriminate against workers due to pregnancy, childbirth, or other related medical conditions. The PWFA covers the entire timeframe from pregnancy to postpartum recovery. That would include accommodations for fertility treatments and morning sickness, which most women know is not limited to just the morning. Private and public sector employers with at least 15 employees are covered by this new law.
The PWFA finally closed the gap of existing law. Before the PWFA, workers could only get an accommodation if they could prove that another employee was given an accommodation. Now, as long as the worker is pregnant or postpartum, they can request an accommodation.
It is important to know that the PUMP Act and the PWFA are the MINIMUM an employer has to do, but your state or other federal laws may provide greater rights and you would benefit from them all!
What Does This Mean?
Under the PUMP Act, if you are covered by the FLSA, you are most likely eligible to pump at work (including remotely) for one year after the birth of your child. This would cover both full and part time workers. Under the law, you have the protected right to have a reasonable break time to pump at work as needed and your employer cannot deny it.
The duration and frequency of the pump break will vary by person and an employer cannot limit this. Time for a pumping break includes getting to the pumping area, setting up your pump, pumping itself, cleaning of the pumping equipment, and getting back to your work area. Under the law, nursing mothers are entitled to this protected time. So, it would be in the employer’s best interest to provide an area close to the working area with amenities such as a sink that a nursing mother will need to pump and then get back to work – a win-win!
Under the PWFA, you would need to request an accommodation – and should be in writing – and the earlier the better in order to maximize your protections. Once the request is made, the employer must have a good-faith conversation to discuss the requested accommodations to meet the worker’s needs, which is formally called the “interactive process.” This process would remove the onus on the worker. Again, a welcome change given everything else a pregnant or new mother must carry.
How Is This Enforced?
Employers have the burden to comply with the PUMP Act or show an “undue burden” will result if they were to apply. If your employer is not in compliance, you have the option to file a complaint with the Department of Labor or file a lawsuit within two or three years (if willful) of the violation.
The PUMP Act also prohibits employers from retaliating against mothers who request to pump at work. A successful complaint may result in recovery for lost wages, attorney’s fees, and/or punitive damages for emotional distress or health complications.
Complaints related to violations of the PWFA would go through the U.S. Equal Employment Opportunity Commission (EEOC).
The PUMP Act and the PWFA are two big steps in the right direction for families. However, there is far more to be done. According to the New York Times, the U.S. is one of six countries with no national paid leave. Further, they report, “Research shows babies continue to benefit from being home with a parent for the first half year — for bonding; increasing immunization and breastfeeding rates; and decreasing hospitalizations from infectious diseases.”
The time to recover from childbirth and spend time with your child is invaluable. Having an understanding and supportive employer is a big driver in a mother’s ability to feel confident in returning to work and to stay there. These new laws help push employers in that direction, whether they want to or not.
Genevieve M. Lage is an associate attorney specializing in employment law with the Southport-based firm Carey & Associates P.C. This article is adapted from a posting on the firm’s blog.
