In Part 1 of this series, we examine the various laws that govern the rights of pregnant and nursing mothers. Under several Federal laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended, the Pregnancy Discrimination Act (“PDA”), Pregnancy Workers’ Fairness Act (PWFA), the Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), and Fair Labor Standards Act (“FLSA”)/PUMP Act, employers have several obligations to pregnant and nursing mothers.
Title VII/Pregnancy Discrimination Act (“PDA”)
The PDA is a federal law that amended Title VII and expanded the coverage of sex discrimination under Title VII to include discrimination based on pregnancy, childbirth, and related medical conditions. The PDA primarily prohibits discrimination based on pregnancy as a medical condition and establishes that pregnant employees should be treated like other employees similar in their ability or inability to work for all employment-related purposes. “Pregnancy” discrimination under Title VII can be based on current pregnancy; past pregnancy; potential pregnancy; medical condition related to pregnancy or childbirth including breastfeeding/lactation; having or choosing not to have an abortion; and birth control (contraception). The PDA applies to employers with 15 or more employees.
The US Supreme Court established a “significant burden” standard for evaluating disparate treatment discrimination claims under the PDA, holding that a pregnant worker can show that their employer’s legitimate, non-discriminatory justifications are pretextual, if its accommodation policies impose a “significant burden” on pregnant workers and the employer’s reasons are not “sufficiently strong” to justify the burden.
Pregnancy Workers Fairness Act (“PWFA”)
Perhaps the most robust protection falls under the Pregnancy Workers Fairness Act (“PWFA”), which took effect on June 27, 2023. Under the PWFA, covered employers are required to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the employer. “Related medical conditions” includes uncomplicated pregnancies, vaginal deliveries or cesarian sections, miscarriage, postpartum depression, edema, placenta previa, and lactation. “Undue hardship” means significant difficulty or expense in light of the cost and the employer’s overall financial resources, type of operation, and impact on the facility’s operation. The PWFA applies to employers with 15 or more employees.
An employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified. Even if the employee or applicant cannot do the essential functions of the job, they may still qualify if the inability is “temporary”, the employee could perform the functions “in the near future”, and the inability to perform the essential functions can be reasonably accommodated.
The PWFA prohibits employers from: (1) requiring an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process; (2) denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for reasonable accommodations; (3) requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; (4) punishing or retaliating against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, (5) reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding; or (6) coercing individuals who are exercising their rights or helping others exercise their rights under the PWFA.
Reasonable accommodations can include, but are not limited to: (1) changes or adjustments at work to allow employees breaks and space for pumping at work; (2) additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom; (3) changing food or drink policies to allow for a water bottle or food, or running water; (4) changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing; (5) changing a uniform or dress code or providing safety equipment that fits; (6) changing a work schedule, such as having shorter hours, part-time work, or a later start time; or (7) telework. Under EEOC’s PWFA regulations, an employer may not require that you provide a doctor’s note in order to take pump breaks.
Family Medical Leave Act (“FMLA”)
Under the FMLA, qualified employees receive 12 weeks of unpaid, job-protected leave per year for the following: (1) for the birth and care of the newborn child of an employee; (2) for placement with the employee of a child for adoption or foster care; (3) to care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. Employees are eligible for FMLA leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.
Under the FMLA, a mother can use 12 weeks of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child.
Americans With Disabilities Act (“ADA”)
The ADA prohibits discrimination against an applicant or employee based on a disability, including a disability related to a pregnancy such as diabetes that develops during pregnancy. While pregnancy itself is not a disability under the ADA, some pregnant workers may have one or more impairments related to their pregnancy that qualify as a “disability” under the ADA. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability. The ADA also requires that employers keep all medical records and information, including those that are pregnancy-related, confidential and in separate medical files. The ADA applies to all employers with 15 or more employees.
Fair Labor Standards Act (“FLSA”)/PUMP Act
The FLSA, under the PUMP Act, requires employers to provide reasonable break time for an employee to express breast milk for their nursing child for one year after the child’s birth each time such employee has need to express the milk. Employees are entitled to a place to pump at work, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Space must be: (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) not a bathroom; (4) functional as a space for expressing breast milk; and (5) available whenever the employee need to pump. Employers are required to provide a reasonable amount of break time and a space to express milk as frequently as you need.
Employers of all sizes must comply with the law, but employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance would impose an “undue hardship” (defined above) based on the specific circumstances. However, for all intents and purposes, it is difficult to establish an undue burden.
Conclusion
Employers have numerous obligations under these various federal laws to properly accommodate pregnant and nursing others and prevent discrimination related to one’s pregnancy. As detailed, the definition of pregnancy might be more expansive than one might think and employers should be prepared to properly account for many different circumstances arising out of, or related to, pregnancy.
We are happy to assist you if you have any questions about compliance with federal pregnancy laws, including review of company policies or handbooks, and employers or workers’ rights under these laws, or any other employment law or business matter. Please visit us at cadoganlaw.com and contact us to schedule a free consultation.
Biography: Abhishek Ramaswami is an Associate Attorney at Cadogan Law, practicing in all aspects of Labor and Employment Law from the agency level through trial, as well as Business Litigation. He is licensed to practice law in Florida, New York, and New Jersey, with pending licensure in Illinois. In his spare time, he enjoys sports, cooking, the outdoors, and traveling with his wife.