What Physician Leaders Need to Know about the PUMP Act and PWFA

Pregnant and nursing employees have newly expanded rights. On December 29, 2022, President Joe Biden signed the Providing Urgent Maternal Protections for Nursing Mother’s Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA) into law. Both expand the protections for pregnant, postpartum, and nursing employees, who may also have protection under the Pregnancy Discrimination Act, the American with Disabilities Act, and the Family and Medical Leave Act.

The PUMP Act expands the 2010 amendment to the Fair Labor Standards Act (FLSA) that required employers (physician leaders) to provide a nursing mother reasonable break time to express breast milk for up to one year after childbirth and to provide a place other than a bathroom for the employee to express breast milk, shielded from view and free from intrusion from coworkers and the public.

Although significant, the 2010 amendment only entitled non-exempt workers to protection because it only covered those workers who were entitled to overtime pay under the FSLA. The key difference between exempt and non-exempt employees is that non-exempt workers are entitled to certain protections under FLSA, a federal law that sets minimum wage and overtime requirements. The PUMP Act expands the protections of break time to nurse and a private place to pump to all exempt and non-exempt employees, which is estimated to cover an additional nine million workers. In addition to expanded coverage, under the PUMP Act, employees have a private right of action to bring suit against employers that do not comply with the PUMP Act.

The PUMP Act applies to all employers covered under the FLSA; however, if an employer with fewer than fifty employees can demonstrate that compliance with the break time requirement would impose an undue hardship, the employer may be exempt. Undue hardship is determined by assessing the struggle or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.

The required break time for pumping under the PUMP Act does not have to be paid unless:

• The employer provides compensated breaks for other employees during similar break times.

• The employee is not completely relieved from duty during the break time.

• The break is otherwise required by law to be paid.

However, exempt employees may not have their salaries reduced due to breaks covered by the PUMP Act.

The PUMP Act does not require the pumping space to be permanent, but does require an available space to be available at the time an employee needs to express milk. It is crucial the space is not a bathroom.

The Pregnant Workers Fairness Act (PWFA) requires employers with fifteen or more workers to engage in an interactive process with pregnant and postpartum applicants and employees and to make reasonable accommodations for any limitation related to pregnancy and childbirth, unless such accommodation would pose an unjustifiable hardship on the employer. Additionally, employers may not deny employment to, take adverse action against, or retaliate against applicants or employees who request a reasonable accommodation, or engage in other protected activity under the PWFA. Much like the ADA, employers and employees must engage in an interactive process to determine what accommodations are necessary for the individual employee.

Prior to the end of 2023, the Equal Employment Opportunity Commission (EEOC) will issue final regulations related to PWFA. The EEOC has already provided standards of potential accommodations that may be appropriate under the FWFA, including longer and more flexible breaks to eat, drink, and use the restroom. Additionally, they have signaled the need for flexibility to deal with morning sickness, exemption from strenuous activity, leave for medical appointments, closer parking, and time to recover from childbirth.

In addition to becoming familiar with the new requirements under the PUMP Act and PWFA, physician leaders (employers) would be prudent to review their policies to comply with the expanded requirements of the newly passed laws. The impact of the PUMP Act and PWFA on physician leaders is huge and it is necessary to understand how to interpret the newly passed laws effect on the workplace environment. Non-adherence could lead to costly litigation and an inability to hire highly qualified employees.