The Birth of New Rights for Pregnant, Postpartum, and Nursing Employees.

• Author: Jackson, Erin

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) (1) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act). (2) The PWFA goes into effect June 27, 2023. The PUMP for Nursing Mothers Act was effective immediately. The new laws greatly expand protections for pregnant, postpartum, and nursing employees in significant ways.

The PWFA is modeled after the Americans with Disabilities Act (ADA) and focuses on the obligation that employers provide reasonable accommodations to pregnant workers and applicants for employment, so long as the accommodation does not pose an undue hardship. The PUMP for Nursing Mothers Act addresses breastfeeding. Federal law already requires employers to provide reasonable breaks and a private, clean space to express milk for hourly, non-exempt employees. The new law extends those protections to millions of employees who were previously excluded from those rights, including salaried, exempt workers.

This article explores the history of this new legislation, provide an overview of the two laws, and summarize key points as it pertains to these new rights.

Background and Legislative History of the PWFA

The PWFA was first introduced to Congress in May 2012 and has been introduced in every Congress since then. (3) It passed the House in May 2021 and cleared the Senate committee later that year. (4) Over the years, the PWFA garnered bipartisan approval and was endorsed by over 230 organizations, including the Society for Human Resource Management (SHRM). (5) On December 22, 2022, Congress passed the PWFA as an amendment to the Consolidated Appropriations Act (2023), which President Biden signed on December 29, 2022.

Federal laws pertaining to pregnancy, childbirth, and related medical conditions, including breastfeeding, are not new. Indeed, the Pregnancy Discrimination Act (PDA) was enacted in 1978 and protects individuals from discrimination based on pregnancy, childbirth, and related medical conditions. Under the ADA, which was signed into law in 1990, reasonable accommodations are required to be granted to individuals with disabilities, including disabilities related to pregnancy. However, pregnancy itself is not a disability under the ADA and a great deal of litigation has resulted from denial of requests for accommodation by pregnant and postpartum workers. In many of those cases, the pregnant and postpartum employees were not successful in their claims under the PDA and the ADA. The PWFA was enacted to address that potential lack of protection for qualified pregnant and postpartum workers seeking modification of their working conditions. As Sen. Bob Casey succinctly stated, "This bill is about two words: reasonable accommodations." (6)

Like the PWFA, the PUMP Act extends protections to additional workers. In 2010, the Fair Labor Standards Act was first amended to require employers to provide break time and a clean, private space for lactation for certain categories of employees. The PUMP for Nursing Mothers Act expands those protections to others.

The PDA and ADA

Before the PWFA, the legal obligation to accommodate pregnant and postpartum employees in the workplace was governed by the PDA, (7) the ADA, (8) and caselaw interpreting those acts. Each law addressed a specific concern related to discrimination in a limited manner. The sponsors of the PWFA intended the new law to expand the scope of the protections available to pregnant and postpartum employees.

The PDA, which amended Title VII, (9) clarifies that the prohibition of discrimination "because of sex" under Title VII includes "because of or on the basis of pregnancy, childbirth, or related medical conditions." (10) It further provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes... as others not so affected but similar in their ability or inability to work." (11)

Though the PDA protects workers from discrimination, the PDA does not expressly provide for reasonable accommodations to women affected by pregnancy, childbirth, or related medical conditions. In 2015, though, the Supreme Court held that an employer's failure to provide an accommodation to a pregnant employee that was widely provided to similarly-situated non-pregnant employees would constitute discrimination. (12) This created what amounted to an implied right to reasonable accommodation.

Many cases have straddled the line between a claim for failure to accommodate and a claim for discrimination. The Supreme Court's most recent illustration of the difference between the two claims is set forth in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015). Young was a driver for UPS. She was expected to lift parcels weighing up to 70 pounds. After she became pregnant, her doctor recommended lifting restrictions of not more than 20 pounds, and later in her pregnancy, not more than 10 pounds. She requested light duty, but UPS refused. Young was forced to go on leave and lost her employee medical coverage.

Young argued UPS discriminated against pregnant drivers because it accommodated other drivers who were not pregnant but were "similar in their... inability to work." UPS countered that it accommodated categories of drivers who had become disabled through on-the-job injuries, those who had lost federal DOT certifications, or those who had disabilities covered by the ADA. Young offered evidence that UPS also accommodated drivers who were injured off the job or had disabilities from diseases including cancer, and that the only light duty requests UPS declined were from pregnant women.

Ultimately, the Supreme Court held in favor of Young, finding that employers making accommodations for other similarly situated workers must also provide pregnant workers with comparable accommodations. (13) But, there is no standalone duty to accommodate under the PDA. The Supreme Court's holding in Young has been interpreted to mean that pregnant workers are only entitled to accommodations to the extent that their employers have accommodated non-pregnant workers who are "similar in their ability or inability to work." In other words, the plaintiff must identify a non-pregnant, similarly situated comparator who was treated more favorably.

After Young, many courts were presented with cases involving pregnancy...