New Protections For Pregnant And Nursing Staff In 2023 – Discrimination, Incapacity & Sexual Harassment

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On December 29, 2022, President Biden signed into regulation the
Pregnant Staff Equity Act (PWFA) and the Offering Pressing
Maternal Protections for Nursing Moms Act (PUMP Act), increasing
federal protections for each pregnant and nursing employees.

Pregnant Staff Equity Act

The PWFA creates a authorized obligation for employers to grant
affordable lodging for pregnant employees. Below the brand new regulation,
which is not going to go into impact till June 2023, employers with 15 or
extra workers shall be required to offer affordable
lodging for “certified” workers and candidates
with momentary bodily or psychological limitations on account of being pregnant,
childbirth or associated circumstances. Workers and candidates are
“certified” in the event that they, with or with out a affordable
lodging, can carry out the important capabilities of the
employment place. A person remains to be “certified”
if the lack to carry out a necessary operate is for a
momentary interval, the important operate might be carried out within the
close to future, and the lack to carry out the important operate
may be fairly accommodated.

The PWFA, just like the Individuals with Disabilities Act (ADA),
obligates employers to offer affordable lodging until
doing so imposes an undue hardship. The PWFA incorporates the ADA
idea of the “interactive course of” – the great
religion dialogue between the employer and worker to attempt to
determine an applicable affordable lodging. Below the brand new
regulation, employers shall be prohibited from requiring a certified
worker or applicant to simply accept an lodging apart from one
arrived at by way of the interactive course of. An employer may additionally
not require an worker to take a paid or unpaid depart if one other
affordable lodging may be supplied. Retaliation in opposition to a
certified worker or applicant for requesting an affordable
lodging beneath the regulation can also be prohibited.

Beforehand, beneath federal regulation, most courts decided that
being pregnant was not thought of a incapacity entitled to an affordable
lodging beneath the ADA. Somewhat, employers have been solely required
to offer affordable lodging when a person’s
being pregnant, childbirth, or associated medical situation rose to the
stage of a incapacity beneath the ADA or when lodging have been
made for different equally located, however non-pregnant, employees. Some
examples of lodging that could be required beneath the PWFA are
offering extra restroom breaks, lowering lifting
necessities, offering depart for an worker who doesn’t qualify
for a depart of absence beneath the Household and Medical Depart Act
(FMLA) or different depart coverage and offering completely different workplace
gear (e.g., offering a stool for an worker who usually is
required to face).

Offering Pressing Maternal Protections for Nursing
Moms Act

The PUMP Act, which amends the Honest Labor Requirements Act (FLSA)
(efficient instantly aside from sure modifications
concerning cures), requires that employers present (1) affordable
break time for an worker to precise breast milk every time the
worker has a necessity to precise the milk for one 12 months after the
kid’s delivery and (2) a spot, apart from a toilet, that’s
shielded from view and free from intrusion by which the worker
can categorical breast milk.

Whereas the Reasonably priced Care Act of 2010 (AFCA) amended the FLSA to
present these protections to non-exempt workers, the PUMP Act
extends the protections to all workers,
non-exempt and exempt, until particularly
excluded, with a necessity to precise breast milk. (Sure employees in
the transportation trade are excluded from the Act.)

An employer is mostly not required to offer a paid break
beneath these amendments; nevertheless, the PUMP Act re-emphasizes the
FLSA precept that point spent to precise breast milk is taken into account
“hours labored” if the worker just isn’t utterly relieved
from responsibility throughout the entirety of the break. If an worker
continues to work, or is interrupted throughout the break, then the
non-exempt worker have to be paid for the whole break (and exempt
workers proceed to obtain their full weekly wage regardless
of any break).

Notably, the PUMP Act doesn’t apply to employers with fewer
than 50 workers if sure necessities beneath the regulation would trigger
an undue hardship.


Below each legal guidelines, employees can carry a personal proper of motion
in opposition to their employer for a violation of regulation. The PWFA requires
that an worker first exhaust all administrative cures.

Employers ought to be aware that many state and native legal guidelines already
present related or larger protections and lodging
necessities for pregnant and nursing employees. These Acts don’t
preempt any state and native legal guidelines that present extra beneficiant
protections. Additional, on a federal stage, the Being pregnant
Discrimination Act of 1978, which amended Title VII, already
prohibited discrimination in employment on the idea of being pregnant,
childbirth, or a associated medical situation.

Whereas many employers could have insurance policies regarding being pregnant,
lodging and nursing employees, employers ought to evaluate these
insurance policies to make sure they’re compliant with these new federal legal guidelines
and make any vital updates. Additional, employers will wish to
make sure that managers and supervisors are educated on how you can deal with
being pregnant lodging requests and requests to precise breast
milk within the office.

The content material of this text is meant to offer a basic
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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Developments In Employment Regulation As We Head Into 2023

Kramer Levin Naftalis & Frankel LLP

As we head into a brand new 12 months, it is vital for employers to concentrate on and plan for developments in varied areas of employment regulation which have not too long ago taken impact or will take impact in 2023.

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