Two New Federal Laws Protect Breast-Feeding and Pregnant Employees, but California Still Leads the Way
The Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections Act (“PUMP Act”) are new federal laws that create additional protections for pregnant and lactating employees, expanding upon existing protections under Title VII, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and the Fair Labor Standards Act (“FLSA”). The new laws clarify existing rules and are a positive development for pregnant and lactating employees, but California law still has stronger protections for this group of workers.
Pregnant Workers Fairness Act (PWFA). Effective June 27, 2023, the PWFA requires employers with at least 15 employees to provide reasonable accommodations to pregnant employees and applicants with limitations related to pregnancy, childbirth, or related medical conditions, unless providing an accommodation would cause undue hardship. Previous rules required employers to provide reasonable accommodations only when the pregnancy-related condition qualified as a disability under the ADA. The PWFA also protects pregnant employees who are temporarily unable to perform essential job functions, whereas the ADA only protects employees able to perform essential job functions with or without reasonable accommodations. The Equal Employment Opportunity Commission has provided FAQs about the PWFA and is expected to issue regulations. A copy of the PWFA is available here.
Existing California law has more stringent rules than the PWFA. California’s Pregnancy Disability Leave (“PDL”) law applies to employers with 5 or more employees, does not have an undue hardship exception, and specifies that employers must provide an unpaid leave of absence, a job transfer to an existing open position, or a reasonable accommodation if the employee’s doctor deems the accommodation “medically advisable.”
Providing Urgent Maternal Protections Act (PUMP Act) The PUMP Act expanded existing federal protections that required employers to provide break time and a private location for lactating employees to express breast milk. Whereas prior law (under the Affordable Care Act of 2010) only applied to employees classified as nonexempt under the FLSA, the PUMP Act expands these protections to exempt/salaried employees. The PUMP Act also creates a private right of action, with the requirement that employees seeking to enforce their right to a private location must provide employers notice and an opportunity to correct violations. The existing rules are otherwise unimpacted: The FLSA requires employers to provide break time “each time [a lactating] employee has need to [breastfeed]” for one year after the child’s birth, and to provide a functional private location other than a bathroom. The PUMP Act took effect on December 29, 2022, and employees could begin bringing private lawsuits as of April 28, 2023. A copy of the PUMP Act is available here.
California Labor Code section 1030 requires employers to allow a reasonable time for lactating employees each time the employee has a need to breastfeed. The state law does not contain the one-year limitation on the employer’s obligation to provide break time. California law also does not require the employee to provide prior notice to the employer before filing a lawsuit.
Posted by Ally Girouard
William Jhaveri-Weeks is the founder of The Jhaveri-Weeks Firm, a San Francisco-based civil litigation practice for individuals and organizations.