Employers should be aware of recent federal legislation that has created new rights for pregnant and nursing employees. Some states also have passed state legislation that creates new or additional rights that employers must follow, depending on the states in which they operate. What follows is a summary of new legislation that impacts pregnant and nursing employees in the workplace.
Federal Laws
Congress updated Section 7 of the Fair Labor Standards Act (FLSA) in 2010 to mandate that employers provide nursing employees with break time and private spaces for pumping. In April 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect, which clarifies and strengthens these protections for nursing employees. More specifically, employers, with some exceptions for undue hardship, must:
- Provide reasonable, flexible, and paid break time for employees to express breast milk for up to one year after the child's birth.
- Provide a non-bathroom space shielded from view and free from intrusion for employees to express breast milk.
The Pregnant Workers Fairness Act (PWFA) also took effect in June 2023. This law requires employers with fifteen or more employees to provide reasonable accommodations for employees with medical conditions related to pregnancy and childbirth, including breastfeeding. The PWFA also prohibits employers from retaliating against employees for requesting this reasonable accommodation.
The U.S. Equal Employment Opportunity Commission (EEOC) issued regulations implementing the PWFA earlier this year. These regulations state that workers may request time off under PWFA to obtain and recover from an abortion. At least two groups have filed lawsuits challenging these regulations. In the first lawsuit, Tennessee v. EEOC, which a group of seventeen state attorneys general filed, an Arkansas federal district court judge dismissed the lawsuit, finding that the plaintiffs lacked standing. In the second lawsuit, a Louisiana federal district court judge issued a temporary injunction prohibiting the EEOC from enforcing the abortion provision of the regulations in Louisiana and Mississippi and against certain religious groups. However, at this point, employers still may face legal liability for failing to offer reasonable accommodations for employees' pregnancy and childbirth-related medical conditions, including those related to abortions, at least outside of Louisiana and Mississippi, and who are not the religious groups at issue.
New York State Laws
As of June 19, 2024, New York Labor Law Section 206-c requires all private employers to provide breastfeeding mothers 30 minutes of paid break time each time they need to express milk. Employers cannot make employees make up these break times or deduct these times from regular paid breaks or mealtimes. These breaks are available to mothers for up to three years after the child's birth.
Beginning on January 1, 2025, New York Labor Law Section 196-b requires private employers to provide pregnant employees with at least 20 hours of paid leave per year to attend prenatal medical appointments and procedures. As a result, employers must update their personnel policies to include this benefit and keep accurate records of employees who take this leave.
Georgia State Law
In 2020, Georgia passed a state law requiring private employers to give employees reasonable paid break times and a private area, other than a restroom, to pump breastmilk. The law offers exemptions based on undue hardship for employers with less than 50 employees.
Massachusetts State Law
Under the 2018 Massachusetts Pregnant Workers Fairness Act, employers must offer employees reasonable accommodations for lactation, including more frequent or longer paid or unpaid breaks and a private room, other than a bathroom, for pumping breastmilk. Like many similar laws, this law has an exemption for undue hardship.
Recommendations for Compliance with FLSA, the PUMP Act, and the PWFA
Employers should take steps nationwide to comply with these federal laws and any applicable state laws. At a minimum, employers should update their workplace lactation accommodation policies and share them annually with all workers. They should also share these policies with new hires and workers returning to work following childbirth.
Employers should maintain private, clean spaces for lactation that are not bathrooms. Workers should have access to a chair, a flat surface, an electrical outlet, and running water.
Finally, employees who need lactation accommodation should inform their employers before returning from maternity leave. Employers should acknowledge the accommodation request within five days of receipt. When providing this accommodation, employers should also keep records of lactation breaks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.