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On December 29, 2022, President Joe Biden signed the Fiscal Year 2023 Omnibus Spending Bill into law. The omnibus bill contains two expansions of employment rights for pregnant and nursing employees of which covered employers should take note. The Pregnant Workers Fairness Act creates new “pregnancy reasonable accommodations” rights effective June 27, 2023. The PUMP for Nursing Mothers Act expands coverage of current law protecting nursing mothers effective immediately and provides expanded rights to sue effective April 28, 2023.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act amends Title VII of the Civil Rights Act of 1964 and expands upon legal requirements originally added to Title VII by the Pregnancy Discrimination Act of 1978.  Employers who employ 15 or more employees during 20 or more weeks in a calendar year are covered by this amendment.

The Pregnant Workers Fairness Act requires covered employers to provide “reasonable accommodations” for the “known limitations” related to a “qualified” employee’s (or applicant’s) pregnancy, childbirth, or related medical conditions, unless the employer can show the accommodation would impose an “undue hardship.” 

The Pregnant Workers Fairness Act defines the term “known limitations” as any physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the person “has communicated to the employer” regardless whether the condition is a “disability” as defined by the Americans with Disabilities Act (ADA).

The Act defines a “qualified employee” as an employee who can perform essential job functions without or without accommodations. Interestingly, the Act also deems a person “qualified” when: (1) the inability to perform essential functions “is for a temporary period”; (2) the essential functions could be performed “in the near future”; and (3) the inability to perform essential functions can be reasonably accommodated. These somewhat vague statutory provisions will likely lead to considerable litigation over issues of how long a “temporary period” lasts and just how soon or how far off the “near future” might be.[i]

The Pregnant Workers Fairness Act adopts the ADA definitions of “reasonable accommodations” and “undue hardship.” The Act also expressly says these two terms “shall be construed” as those terms are construed under the ADA, “including with regard to the interactive process that will be typically used to determine an appropriate reasonable accommodation.” [To read more on the Eleventh Circuit’s recent case of first impression deciding how an employee triggers the employer’s duty to engage in the interactive process see: Bias Suit Ruling Offers Disability Accommodation Guidelines]

The Pregnant Workers Fairness Act expressly states an employer violates the law if it requires a qualified employee to accept an accommodation “other than any reasonable accommodation arrived at through the interactive process.” This provision also may be subject to litigation over whether the courts will follow the law developed under the ADA that allows employers to impose an accommodation rather than the employee’s preferred accommodation, if the employer-selected accommodation is reasonable.

The Pregnant Workers Fairness Act also explicitly states the employer acts unlawfully if the employer forces an employee to take a leave of absence if another reasonable accommodation can be provided. Because the Act also states that nothing in its provisions may be construed to invalidate or limit any federal or state law that provides greater or equal protection, employers should still be able to require eligible employees to take leave covered by the Family and Medical Leave Act. This provision opens up yet another area for litigation.

The Pregnant Workers Fairness Act takes effect 180 days after the date of enactment, that is, on Tuesday, June 27, 2023. To ensure compliance with the new pregnancy accommodations requirements, covered employers should act now to prepare for accommodations requests with new or revised policies and forms, as well as training on best practices. 

PUMP for Nursing Mothers Act

The “Providing Urgent Maternal Protections for Nursing Mothers Act” expands upon current requirements found at Section 7(r) of the Fair Labor Standards Act (29 U.S.C. § 207(r)), previously added by the Affordable Care Act of 2010.

The PUMP Act moved the legal requirements from 29 U.S.C. § 207, which mostly deals with the FLSA’s overtime pay requirements, to a new freestanding section (29 U.S.C. § 218d). This statutory change closes a loophole, because employers previously were not required to provide the protections to employees who are exempt from the requirements of 29 U.S.C. § 207 (such as executives, administrators, professionals, teachers, or farmworkers).

The law requires covered employers to provide a reasonable break time for nursing employees to express breast milk for a nursing child each time the employee has a need to express the milk. The law also requires the employer to provide a place, other than a bathroom, for the expression of milk that is shielded from view and free from intrusion by coworkers and the public. Both of these protections exist during the first year of the child’s life.

An employer is not required to pay an employee for the nursing break time, unless required by other applicable law, or if the employee is not completely relieved from duty during the nursing break. In other words, if the employee continues to work while expressing breast milk, the employer must pay for the time and count the “break” time as “hours worked.” 

An employer who has less than 50 employees need not follow these provisions under limited circumstances. The employer is exempt if the requirements would impose an undue hardship by 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 PUMP Act also contains some exemptions for crewmember employees of air carriers and limitations on the scope of coverage of rail carriers with respect to train crew employees.

The expended access requirements under the PUMP Act to provide nursing break time and protected space for expressing breast milk are effective on the date of enactment. The provisions of the law allowing employees to seek legal relief and remedies under the FLSA for violations take effect 120 days after date of enactment, that is, on Friday, April 28, 2023. Covered employers should take steps to adopt or revise policies and practices concerning nursing mother breaks during this grace period.

Randall Scott Hetrick is a partner and labor and employment team leader at Adams and Reese LLP.


[i] See Wood vs. Green, 2003 WL 1090412 (11th Cir. 2003) (Worker's request for "indefinite leaves of absence so that he could work at some uncertain point in the future … was not reasonable. The ADA covers people who can perform the essential functions of their jobs presently or in the immediate future.").