The United States House and Senate have passed two new worker protections (contained within the Omnibus Spending Bill).  President Biden is expected to sign the bill into law later this week, and the new laws will apply to employers nationwide:

• The Pregnant Workers Fairness Act expands protections for pregnant workers by requiring employers with 15+ employees to make reasonable accommodations to employees affected by pregnancy, childbirth, or related medication conditions nationwide.
• The Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act expands the requirement that employers allow breastfeeding workers time and a place to express breast milk by extending the protection to exempt employees, lengthening the applicable period from one to two years, clarifying that time spent working while also expressing breast milk is compensable time, and expanding employee remedies for violation of the law.

While these new federal laws largely align with pre-existing California laws, they will have some limited effect on California employers by slightly expanding existing obligations.  And of course, any California employers with employees outside the state must now comply with the expanded federal protections nationwide.

Expansion of Accommodations for Pregnant Workers

The Pregnant Workers Fairness Act increases employers’ obligations to make reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions nationwide.

Covered employers include employers engaged in industry affecting commerce with 15 or more employees; the federal government, and the states and subdivisions of the states.

Qualified employees are employees or applicants who, with or without reasonable accommodation, can perform the essential functions of the position, with a notable exception: an employee may still be qualified if they are unable to perform an essential function of the job 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.  

This law applies to “known limitations,” which are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, regardless of whether the condition meets the definition of a “disability” in the ADA.

This law makes it an unlawful employment practice to:

• fail to make reasonable accommodations to known limitations of qualified employees affected by pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on an entity’s business operation;
• require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
• require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
• take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

“Reasonable accommodation” and “undue hardship” will have the same meanings as under  the ADA, including with regard to the interactive process that will typically be used to determine an appropriate reasonable accommodation.

What this Means for California Employers

Employers in California are already obligated to grant reasonable accommodations to employees affected by pregnancy, childbirth, or a related medical condition if the request is based on the advice of a health care provider that the accommodation is medically advisable, and the requested accommodation is reasonable. 

Thus, the federal law is not likely to significantly alter California employers’ obligations.  However:

• California’s reasonable accommodation obligation is explicitly tied to medical advice, while the federal law obligates employers to grant reasonable accommodations when to known limitations.  While an employer may request a certification from a medical professional as part of the interactive process under certain circumstances, medical advice is not a required element of the federal test.  California employers should thus use caution in requiring medical advice or certification prior to granting accommodations to ensure they are complying with both federal and state law.
• In addition, the federal law explicitly provides that a person may be entitled to reasonable accommodation in limited circumstances when they cannot perform the essential functions of the job – this is not made explicit in California law.  Thus, California employers should not deny accommodations to employees affected by pregnancy, childbirth, or a related medical condition on the basis that an employee is not able to perform the essential functions of the job if the inability to perform an essential function of the job 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.  

California employers should examine their pregnancy accommodation policies to consider whether they comply with the anticipated new federal law; and employers outside California should consider what steps they must take to comply.

Expansion of Protections for Breastfeeding

Existing federal law – (i.e., the Break Time for Nursing Mothers law [codified in the Fair Labor Standards Act]) – requires employers to provide reasonable break time for non-exempt employees to express breast milk for a child for 1 year after the child’s birth each time such employee has need to express milk.  It also requires employers provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.  While a milestone when enacted in 2010, several concerns have subsequently been raised about the federal breastfeeding law.  For instance, it does not presently require employers to compensate employers for this break time, and provides a limited exception for employers with fewer than 50 employees (who are not required to comply if it would impose an undue hardship).  It also currently does not apply to employees who are exempt from overtime laws (i.e., executive, administrative, professional, outside salesmen, etc.), thus creating a “coverage gap” for millions of employees.

Accordingly, the PUMP ACT expands these protections in several important ways.  The new law:

• Covers all employees – including exempt employees.
• Covers a two-year period beginning on the date on which the circumstances related to the need to express breast milk arise.
• Specifies that the need to express breast milk may arise from giving birth to a stillborn child or a child over whom the employee does not retain legal custody.
• Clarifies that if a non-exempt employee is not completely relieved from duty during the entirety of the break time, the break time must be paid.  (An exempt employee’s salary cannot be reduced to account for this time.)
• Expends the remedies an employee can seek for violation of the law to include any legal or equitable relief appropriate to effectuate the purposes of the statute.  There is a limited safe harbor – before an employee brings an action for violation of the requirement to provide a place for expressing breastmilk, the employer must notify the employer and give them 10 days to come into compliance. 

The new law will take effect 120 days after the date the President signs the bill into law.  Note that this law has limitations in applicability and a different effective date for employers that are air carriers.

What this Means for California Employers

California law already requires employers to provide a reasonable amount of break time to accommodate any employee (exempt or non-exempt) desiring to express breast milk for the employee’s infant child.  There is no limit on the length of time for which this accommodation must be provided after the birth of the child.  Break time that does not run concurrently with California’s required rest breaks is unpaid, but no deduction shall be made from an exempt employee’s salary for such time.  California law requires an employer to provide the use of a room or other location, which must meet specific requirements. There are limited exceptions from the requirement to provide a place for employer that employs fewer than 50 employees if undue hardship.  And an employer is not required to provide break time if to do so would seriously disrupt the operations of the employer.

Thus, the federal law is not likely to significantly alter California employers’ obligations.  However:

• California employers should take note that if an employee is not completely relieved of duty during the time spent expressing breast milk, the time must be compensated.
• California employers should ensure the accommodation is offered even in the case of stillbirth or a child over whom the employee does not retain legal custody. 
• And any California employer with 50 or more employees who wishes to take advantage of the state’s law’s exception based on “serious disruption of operation” should exercise caution and consult with counsel, as that exception does not appear in the federal law (except for air carriers), and the employer may risk violation of the federal law if it does not provide lactation breaks.

Employers should also be aware of any applicable city, county or municipality lactation accommodation requirements.

California employers may wish to take this opportunity to examine their pregnancy accommodation policies to consider whether they comply with the anticipated new federal law; and employers outside California should take steps to comply with the federal law’s expanded protections.

If you have questions about how these new laws will affect your business or advice about how to implement these new requirements, please contact us.

• Katie M. McCray (kmccray@wilsonturnerkosmo.com)
• Michael Kalt (mkalt@wilsonturnerkosmo.com)
• Emily J. Fox (efox@wilsonturnerkosmo.com)
• Lois M. Kosch (lkosch@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.