The PWFA and Pump Act: Am I in Compliance?

As a small business owner, you want to make sure all your employees feel good about coming to work. And when a team member goes through a major life change–like having a baby–you might be wondering what, exactly, you can do to help them feel comfortable at the office.

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Congress has some answers. They recently passed two new laws to help new and expecting moms in the workplace.

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Called the Pregnant Workers Fairness Act (PWFA Act) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), these laws include protections for lactating and pregnant employees.

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We'll dive deep into what you need to know as a business owner–so that you can comply with these workplace protections and make sure your new and expecting moms feel great in the workplace.

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So, let's get started!

What is the PWFA Act?

Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) guarantees that new and expecting moms get reasonable accommodations in the workplace. That way, they can stay healthy and still do the essential functions of their job, just like workers with disabilities. 

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In other words, employers can't fire workers, demote them or otherwise penalize them because they need extra support when they're pregnant or postpartum. 

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So what, exactly, is a reasonable accommodation under the PWFA?

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Workers can ask for things like:

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• Light-duty work or help with heavy lifting
• A temporary transfer to a job that's safer 
• More snack or bathroom breaks
• Keeping food or a water bottle nearby 
• Breaks and private spaces to express breast milk (that aren't the bathroom) 
• Changes in dress code 
• Flexible schedules to make doctors' appointments
• Time off to recover from having a child

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That being said, a reasonable accommodation could be a number of things, depending on your industry, company size, the employee's needs, and their job duties. 

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The law requires you to go through an "interactive process," which is essentially discussing the accommodation. You can do this in person, over the phone, or even via email. The key is to keep communication open and make a genuine effort to meet their needs.

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Some other important provisions in the PWFA include:

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• Businesses can't deny a job or employment opportunity to a new or expecting mom because she needs an accommodation.
• Employees can't be forced to accept an accommodation that doesn't work for them. 
• Employers can't jump straight to requiring someone to take paid or unpaid leave if there's a way to provide another accommodation that would allow them to keep working.
• The worker doesn't need to say the words "reasonable accommodation" to get their needs met. So, as soon as you're aware of the need for accommodations, it's time to start the interactive process. Be prompt and proactive so you can figure out something that works for everyone.

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This PWFA is an extension of the Americans with Disabilities Act (ADA), which protects workers from discrimination based on a person's disability.

What Businesses Must Comply with It?

Businesses with 15 or more employees are required to comply with the PWFA.

What Employees Does It Apply to?

Exempt and nonexempt workers, and job applicants.

Are There Any Exceptions?

A business can deny an accommodation to a new or expecting mom if it would cause undue hardship to the company. What is that, exactly? An undue hardship is a situation where providing an accommodation would cause significant difficulty or expense for the employer. 

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For example, a small construction company with a limited budget has a pregnant worker who requests to be transferred to an indoor office position due to the physical demands of her current role. 

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However, the company may not have the financial resources to hire additional workers to compensate for the pregnant worker's absence, which could create an undue hardship for the company. 

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In this case, the company may need to explore other accommodations that would work for both the worker and the business, such as providing additional safety equipment, reducing the worker's workload, or providing more frequent rest breaks.

How Long Do These Protections Last?

Two years following birth.

How Do I Comply with the New Law?

Now that you understand all the important provisions of the PWFA, what practical steps can you take to make sure you're in compliance? Here are a few helpful tips:

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• Make a standard process for everyone to follow, including how to submit a request for an accommodation and what supporting documentation from a healthcare provider an employee needs to provide (allowed by federal law, however, state and local laws may differ).
• Update your employee handbook with info on accommodation policies and the process you've put in place to stay compliant. 
• Train managers on these new policies so they're implemented consistently.
• When an employee asks for an accommodation, try to make it work first and foremost.
• Check with state or local laws—if they're more generous than the PWFA, you'll need to comply with them too.

What is the PUMP Act?

Effective as of December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act requires employers to provide lactating and nursing employees with a private, non-bathroom space and breaks to express breast milk—for up to two years after a child's birth.

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If this law sounds familiar to you, it should! A version of it has been around since 2010 under the Fair Labor Standards Act (FLSA), but now, the PUMP Act:

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• Grants these same protections to salaried and/or exempt employees too.
• Increases the amount of time it applies after birth to two years (it used to be one).
• Includes the right for employees to sue for lost wages, emotional distress, punitive damages, and attorney fees if their lactation rights are violated (this provision won't take effect until April 28, 2023.)
• Stipulates that employees who continue to work while they express milk are entitled to compensation during that time.
• Requires employees to wait 10 days for their employer to fix an issue before pursuing a claim against them.

How long are Pump Breaks?

Employees must be given reasonable break time–i.e., enough to express milk. This can vary from person to person—some lactating or nursing workers may only need 15 minutes, while others may need 30 minutes or more. 

Do Employees Get Paid when Expressing Breast Milk?

If an employee is not completely relieved from duty during their pump break, then any time spent expressing breast milk should be considered hours worked and compensated accordingly. 

Who Is Required to Follow It?

Small businesses with 50 employees or more must comply with these new protections. 

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Businesses with fewer employees aren't required to follow the PUMP Act if it would cause undue hardship. These cases are extremely rare—so, most likely, you'll need to comply with PUMP.

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Another reason you may need to comply? Businesses with 15 or more employees are required to follow other regulations for new and expecting moms—like the PWFA, which requires lactation accommodations.

Which Employees Does It Apply To?

The PUMP Act applies to all your exempt and nonexempt workers.

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There are some exceptions, like rail carrier and motorcoach employees won't get these protections for another three years. 

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Also, airline flight crew members, including flight attendants and pilots, are not currently covered by the law. Though not technically qualified employees, they may still have the need for such accommodations. Consider providing lactation accommodations voluntarily to show your commitment to supporting working parents.

Are There Any Exceptions?

Employers of all sizes can get an exemption for providing lactation breaks and space when doing so would cause significant difficulty or expense (i.e., undue hardship), but it's important to note that undue hardship is rare.

How Can We Comply with It?

The PUMP Act is most likely something many businesses are used to since it's been law for some time, though there have been some updates. Follow these steps to make sure you stay in compliance:

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• Refresh your knowledge on providing break time and private spaces for expressing breast milk. 
• Check state and local laws and whether they provide even greater protection. 
• Create private, dedicated spaces for employees to express breast milk as soon as they need it. (Note, the law doesn't require you to maintain a permanent space.) You can use privacy screens, curtains, signage, or even portable pumping stations. Just remember, as long as the space is shielded from view and free from intrusion from coworkers and the public, you're good to go.
• And, like the PWFA, update your employee handbook to incorporate the new PUMP policies and train managers on them so they're implemented fairly across your company.

What Happens if I don't Comply with the PWFA or PUMP Act?

The penalties for businesses that do not comply with the PWFA or PUMP acts will vary depending on the severity of the violation. The Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and/or state and local employment practices agencies can investigate a company for failing to provide accommodations.

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Though the details aren't clear yet, you can generally except to face legal action and be required to pay fines, make changes to your facilities or practices to become compliant with the law, and provide compensation to victims of discrimination. Repeat or egregious violators may also face higher penalties, such as increased fines or even criminal charges.

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Want to make sure to cover all your bases? Seek legal advice on whether your specific policies are up to date and in compliance with employment law. 

Make Supporting New and Expecting Mothers a Priority at Your Workplace

After all this information, you may be wondering how to best support your pregnant and lactating employees while running your business. The main thing to remember is to listen to their needs—and make it a priority to meet them.

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Not only will that keep you in compliance with the new (and updated) laws, but it will also send a message to all your team members that they can grow their families comfortably at your company. In the end, that will encourage them to stay on board and keep your business staffed with loyal, experienced team members.