NEWS: Two federal laws are expanding the rights of pregnant and breastfeeding workers: The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). They both impose new requirements on many employers – including credit unions – related to accommodations for pregnancy- and childbirth-related conditions and for nursing mothers.
Covered credit unions need to update certain workplace posters because of the new laws.
The following summaries of the new laws are based largely on material provided by The League’s outside counsel, the Husch Blackwell law firm.
Pregnant Workers Fairness Act (PWFA)
The Pregnant Workers Fairness Act (PWFA) takes effect Tuesday, June 27, 2023.
It applies to employers with 15 or more employees and to “qualified employees,” meaning an employee or job applicant who can perform the essential functions of the position with or without reasonable accommodation.
The PWFA gives workers with conditions arising from pregnancy or childbirth the right to reasonable accommodations in the workplace.
The PWFA provides for broader protections than are available to pregnant employees under the Americans with Disabilities Act (ADA): It requires a covered employer to provide reasonable accommodation for a known physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions regardless of whether the condition meets the definition of disability under the ADA. It also provides for broader protection than the Pregnancy Discrimination Act.
The Act leaves open the question of what accommodations are “reasonable” in the context of pregnancy. Employers should be mindful that a reasonable accommodation for a pregnancy-related condition may be different than a reasonable accommodation for a more permanent condition, as the likely temporary nature of a pregnancy accommodation may change the analysis of what is reasonable.
Employers can eventually expect greater clarity on what the Act requires, as the Equal Employment Opportunity Commission (EEOC) plans to issue regulations per PWFA’s requirements, including examples of reasonable accommodations under the Act. Those regulations can be expected within the next two years.
Employees who believe their rights under this Act have been violated can file a complaint with the EEOC.
Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act
The PUMP Act amends the Fair Labor Standards Act (FLSA) and expands existing federal law requiring employers covered under the FLSA to provide accommodations — including breaks and a private, non-bathroom space — for breastfeeding workers to express milk. Under the PUMP Act, many workers not previously entitled to lactation accommodations under federal law (such as salaried employees) are now covered.
The PUMP Act largely took effect Dec. 29, 2022, but changes to remedies took effect April 28, 2023.
The Act requires employers to allow for reasonable breaks each time an employee needs to express milk for up to one year after the employee’s child is born. While employees are not entitled to compensation during these breaks if no work is being performed during the breaks, the breaks will be considered “hours worked” subject to compensation if the employee is not completely relieved from duty for the entirety of each break.
And, importantly for employers, employees must now notify their employers if they believe their employer is out of compliance with the Act’s requirements in terms of the space provided for lactation breaks and must give their employer 10 days to come into compliance before making any claim of liability against their employer.
The Department of Labor (DOL) is responsible for enforcing several federal labor laws, including this Act. Employees who believe their rights have been violated pursuant to this Act can file a complaint with the DOL’s Wage and Hour Division.
Display new workplace posters
Because of new rights granted under the laws, employers must display a new version of workplace posters, according to the Society for Human Resource Management (SHRM). The following information is based largely on SHRM material.
The DOL recently released two new posters with additional information about the new laws:
- When the federal Affordable Care Act first mandated pumping breaks in 2010, the law only applied to non-exempt workers under the FLSA. The new FLSA poster “Employee Rights Under The Fair Labor Standards Act” describes how those rights now extend to exempt employees, meaning salaried workers who are not entitled to overtime. Employers will want to replace the August 2016 version with the April 2023 version.
- The new Family and Medical Leave Act (FMLA) poster “Your Employee Rights Under the Family and Medical Leave Act” (rev. 4/23) clarifies that while FMLA leave is unpaid, an employee may be required to use employer-provided paid leave at the same time.
The EEOC also has updated its “Know Your Rights: Workplace Discrimination Is Illegal” (rev. 10/20/2022) poster with new information about the PWFA, to be displayed starting Tuesday, June 27. The poster is available here, in versions designed for electronic posting, and for posting in the workplace.
Displaying the DOL’s and EEOC’s posters fulfills the notice requirement for employers. Covered employers must display them in a conspicuous place in all their establishments. There is no size requirement for the posters, but employees must be able to read them easily.
In addition to physically posting, covered employers are encouraged to post the notice digitally on their websites in a conspicuous location. In most cases, electronic posting supplements the physical posting requirement.
For details on workplace poster requirements, see The League’s ii Release No. 0080, which is being updated to reflect the new poster requirements.
Resources
- TruStage (formerly CUNA Mutual) bond holders can access this Risk Alert for information for credit unions about the PWFA and PUMP Act. It includes a list of risk mitigation steps that covered credit unions should take.
- This EEOC website offers information on “What you should know about the Pregnant Workers Fairness Act.”
- This DOL website offers information on state laws that protect pregnant and nursing workers.
- This SHRM article offers suggestions on training managers for PWFA and PUMP Act compliance.
League Legal Affairs Attorney’s Conference
Jul 25, 2023 9:00 AM – 3:00 PM, Madison WI – Information and Registration.
The League Legal Affairs Attorney’s Conference brings together attorneys from Wisconsin’s Credit Unions for a day of discussion around Compliance and Legal matters of importance to our members. Please invite your credit union attorney to attend!
Agenda:
9:00 am – 3:00 pm
*More details on sessions coming soon
9:00 am – 9:30 am
Welcome and Coffee
9:30 am – 10:30 am
Paul Guttormsson, Senior Vice President & General Counsel | The League
10:30 am – 12:00 pm
Tom Theune, Director | Office of Credit Unions, DFI
12:00 pm – 12:30 pm
Lunch
12:30 pm – 1:00 pm
John Engel, Director of Legal Affairs | The League
1:00 pm – 2:00 pm
Melissa Caulum Williams | Senior Counsel | Husch Blackwell
Melissa will lead a session on HR Compliance issues
2:00 pm – 2:30 pm
Kim Hoppe, Compliance Resource Analyst | The League
2:30 pm – 3:00 pm
Roundtable Discussion Adjourn
Location:
Credit Union House
1 East Main Street, Suite 101
Madison, WI 53703
Fees:
$179 | Early Bird by July 7
$199 | Regular