Omnibus Spending Bill Includes Protections for Pregnant and Lactating Workers

December 28, 2022 Advisory

On Dec. 23, 2022, just in time to avert a government shutdown, President Biden signed into law the Consolidated Appropriations Act of 2023. The $1.7 trillion omnibus spending bill funds the federal government through fiscal year 2023, which ends on Sept. 30, 2023. The vast spending bill, which includes aid to Ukraine and a ban on TikTok on government devices, also includes new and significant protections for pregnant workers and workers expressing breast milk for their nursing child.

The Pregnant Workers Fairness Act (PWFA). The PWFA requires private employers with 15 or more employees to provide reasonable accommodations for “known limitations” of “qualified” pregnant workers. Key provisions of the PWFA include the following:

Definitions.

  • “Known limitation” means a physical or mental condition related to pregnancy, childbirth or related medical conditions that have been communicated to the employer “whether or not such condition meets the definition of disability” under the Americans with Disabilities Act (ADA) (emphasis added). 
  • A “qualified employee” “means a worker who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that the worker shall be considered qualified if:
    • any inability to perform an essential function is for a temporary period;
    • the essential function could be performed in the near future; and
    • the inability to perform the essential function can be reasonably accommodated.

Prohibitions. The PWFA makes prohibits an employer from, among other things:

  • Requiring a qualified employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process (as defined under the ADA).
  • Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act amends the Fair Labor Standards Act to require most employers to provide reasonable break time for lactating workers for one year following the child’s birth. A place must be provided for the parent to express milk, which cannot be a bathroom, and which must be shielded from view and free from intrusion from coworkers and the public. Break time need not be compensated unless the employee is not completely relieved from duties during the entirety of the break. Before commencing an action under the PUMP Act for failure to provide a place to express milk, the employee must provide the employer notice of the violation and 10 days in which to cure the violation, unless the employee has been discharged or the employer has indicated that it has no intention of providing the required place.

For additional information or questions specific to your organization, please contact your regular AT lawyer or the author listed below.

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