Labor & Employment Alert: New Federal Appropriations Act Includes New Provisions Protecting Pregnant Employees

No doubt you have not spent much time perusing the 1,653 pages making up federal H.R.2617, the Federal Appropriations bill pushed out just prior to Christmas. But, you may have seen a notice somewhere that, tacked on to that bill were two employment law provisions that could be significant to your daily business affairs: the “Pregnant Workers Fairness Act” and the “Providing Urgent Maternal Protections for Nursing Mothers Act.” Here is what we think you need to know about them.

What You Need to Do

1. The Providing Urgent Maternal Protections for Nursing Mothers Act takes effect immediately. So, you should review your internal policies, and particularly employee handbooks, to ensure that you have language in place that recognizes that all employees now have the right to take a break, as needed, to express breast milk. If you haven’t had occasion to deal with this issue in the past, you should give consideration to where you would be able to set up a sanitary, private, non-bathroom location at your facility for this purpose.

 

2. The Pregnant Workers Fairness Act takes effect in six months. By the 4^th of July, you should: review your internal policies, and particularly employee handbooks, to consider how your company traditionally treated pregnancy discrimination, the right to ask for accommodations related to pregnancy, and the rights of pregnant employees to maternity leave. This language may appear in connection with your existing language about discrimination/sex discrimination and making complaints, disabilities and accommodations, Family and Medical Leave, and/or language that pertains to the availability of leaves of absence, whether paid or unpaid. Your primary goal is to assure that (a) either you have appropriately spelled out the company’s policies on accommodating pregnancies, or at least, (b) the existing language in the documents already distributed are sufficiently broad to allow the company to respond appropriately to such requests and not so restrictive as to lead a pregnant employee to believe that she has no rights in this regard.

 

3. By the 4^th of July, you should: at the very least, meet with/train supervisors and HR personnel to understand the new obligations to accommodate pregnancy-related limitations so as to (a) avoid having a supervisor unwittingly make a statement that is inconsistent with the evolving law and/or (b) to identify when a scenario warrants referral to HR to try to ensure that it is handled appropriately.

You should be aware that, on January 10, the EEOC publicly issued its “Draft Strategic Enforcement Plan,” by which it announced how it intends to focus its enforcement actions in the next 4-year cycle. They expressly included: “enforcing the provisions of the newly enacted Pregnant Workers Fairness Act.:

Understanding How the Law Has Changed

Pregnant Workers Fairness Act

Historical Background

In 1978, Congress enacted the Pregnancy Discrimination Act, making it unlawful for employers to discriminate against pregnant workers.  But, like other discrimination laws before it, the focus of the protection was on trying to ensure that pregnant workers were not treated in a manner different from other employees¹. That is, a pregnant worker claiming that she had been the subject of discrimination would typically be called on to show that some other comparable employee had been given better treatment than she had.

In contrast, at least since the enactment of the Americans with Disabilities Act in 1990 (ADA), disabled employees have not had the same limitation. They could at least ask for a reasonable workplace accommodation, regardless of whether anyone else had ever been granted or denied that accommodation, based only upon their establishing that they had a disability and that the accommodation would assist them in performing their workplace duties.

“Pregnancy,” per se, is not considered a legal “disability.” As a result, while in some cases, impairments related to a pregnancy might be deemed disabilities, the typical pregnant worker would not be considered disabled based on that status alone, and therefore, would not be entitled to the obligations which the ADA places on employers.

In a 2015 case before the U.S. Supreme Court (Young v. U.S. Parcel Service, Inc.), a pregnant UPS driver was given a 20-pound weight restriction while the job description called for being able to lift 70 pounds. The Company had previously authorized “light duty” for: workers injured on the job (encouraged by the State workers compensation program), other employees covered by the ADA, and others who could not drive due to Department of Transportation rules, —but it routinely refused to allow light duty for other reasons. UPS claimed that it did not discriminate against the pregnant worker when it denied her light duty, because not being in one of the “groups” for which it routinely allowed light duty, the worker was not treated differently from any other relevant employees. The Court held that the determination of this point of law would be decided based on whether a large percentage of nonpregnant workers were receiving an accommodation which a large percentage of pregnant workers were being denied.

Pregnant workers in the years since have had a difficult time meeting that test. For example, in a case which culminated in a court of appeals just last August (EEOC v. Wal-Mart Stores East, LP), a Walmart facility had a practice of allowing light duty only for workers injured on the job (again, encouraged by the State workers compensation system), but denied it for anyone else.  Pregnant workers were routinely put on mandatory leave. But the appeals court held that this was not unlawful, because, aside from the discrete group of workers compensation employees, the pregnant workers were treated the same as all the others.

Other cases have gained notoriety, such as employer policies denying pregnant workers additional bathroom breaks, refusing to allow pregnant employees to sit on a stool, refusing to change a schedule to allow for morning sickness, or refusing to allow a pregnant employee to carry a water bottle on the job. Unless the case involved a condition arising from the pregnancy which met the definition of a disability, an employer who refused these “accommodations” to other employees would typically not be found to have discriminated for also denying them to a pregnant worker.

Congress’s Response

This new Federal Act now makes the situation much more analogous to what you may already be familiar with in responding to requests for accommodations under the ADA. The focus is no longer limited to asking whether the treatment being afforded a pregnant worker is different from the treatment other employees received. Instead, as with a disabled worker, there is now an additional affirmative obligation to allow an employee request for an accommodation for a physical or mental limitation, if it is a reasonable request and is attributable to being pregnant or having given birth, without the necessity of showing that the worker’s condition amounts to a “disability.”

Specifically, this Act makes it unlawful for an employer to:

• not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

• require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the “interactive process”; or

• require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee.

So, as with a disabled worker, a pregnant worker will have the right to engage in the “interactive process” with the employer to develop appropriate accommodations; and forcing an employee to take leave will not be an option to the employer unless there is no other option. 

But there is a “twist” to this process which sets it apart from ADA procedure. Under the ADA, accommodations are intended to enable a worker to perform the “essential functions” of one’s job — but, at the end of the day, the employee must still be able to perform those functions. This new ACT adds this exception:

• the term ‘‘qualified employee’’ means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—

            (A) any inability to perform an essential function is for a temporary period;

            (B) the essential function could be performed in the near future; and

            (C) the inability to perform the essential function can be reasonably accommodated.

In other words, in some instances, the employee may need to be excused from performing one or more essential functions, if this standard is met. How that may work is left to speculation at this point²; but Congress did instruct the EEOC to promulgate rules, within the next year, which would likely provide examples.

Note also that, as with other discrimination laws, these rights will extend to applicants for jobs; and the law prohibits retaliating against someone who tries to exercise these rights.

Obviously under these ground rules, regardless of an employer’s policies for other workers, in the average scenario a pregnant worker’s request for additional bathroom breaks, a stool to sit on while working, a change of schedule to allow for morning sickness, or to carry a water bottle on the job, would all likely be granted as a matter of course.

Providing Urgent Maternal Protections for Nursing Mothers Act

(“PUMP for Nursing Mothers Act”) 

Historical background

We are all acquainted with the Affordable Care Act; but you may not remember that, as part of that huge bill, this provision was included:

    (r) Reasonable break time for nursing mothers

        (1) An employer shall provide—

            (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and

            (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

        (2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

        (3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

29 USCA § 207.

However, while the language appears to be all-inclusive, it was tacked on to Section 207 of the Fair Labor Standards Act (the overtime provision); and Section 213 of that Act created exemptions from Section 207 – in other words, employees who are “overtime exempt” are automatically excluded from the provision quoted above.

Congress’s Response

This Act now establishes the following rights (effective immediately):

    (a) IN GENERAL.—An employer shall provide—

        (1) a reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

        (2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

    (b) COMPENSATION.—

        (1) IN GENERAL.—Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance.

        (2) RELIEF FROM DUTIES.—Break time provided under subsection (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.

    (c) EXEMPTION FOR SMALL EMPLOYERS.—An employer that employs less than 50 employees shall not be subject to the requirements of this section, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

In other words, same words/same obligation; but now, there is no exemption for overtime-exempt employees.