By: Jennifer Weitz, Esq. and Ty Hyderally, Esq.

Included in the spending bill Congress passed at the end of 2022 were two bills designed to increase job protections for pregnant and nursing women. The Pregnant Workers Fairness Act and the Pump Act passed Congress and were signed into law by President Biden on December 29, 2022. Together, the bills will go a long way towards helping working mothers, or those about to become mothers, stay in the workforce, and not have to decide between their job or their health.

The Pregnant Workers Fairness Act (“PWFA”) requires employers to provide reasonable accommodations for all pregnant workers unless it would cause an employer undue hardship. First introduced in 2012, the law’s language is modeled on the Americans With Disabilities Act, which covers disabled workers but not pregnant workers (under the ADA, pregnancy is not a disability). The law also prohibits an employer from discriminating against potential hires due to pregnancy. A reasonable accommodation can be as basic as access to water or allowing more bathroom breaks—but prior to the bill’s passage, even these modest accommodations became reasons to pass over pregnant workers for promotion, place them on unpaid leave, or simply fire them. Indeed, according to Forbes, one in five working mothers is afraid to tell their employer about their pregnancy.

The other bill passed by Congress is the PUMP (Providing Urgent Maternal Protections for Nursing Mothers) Act. Under the Act, an employer must set aside time and space for nursing employees to pump breastmilk. If the employee is able to work while pumping, an employer must count the time pumping as hours worked.

The PUMP Act builds on the protections of the Break Time for Nursing Mothers law of 2010, which amended the Fair Labor Standards Act (FLSA). That law, which requires employers to provide workers who are nursing with reasonable time and private space to pump breast milk, excluded most salaried employees, with the result that almost nine million women of child-bearing age were not covered by the law. The PUMP Act covers these working mothers, even as it contains an exception for employers with fewer than 50 employees, for whom compliance would present an “undue hardship.” It also contains carveouts for the airline and railroad industries, where the limited space available would be an obstacle to compliance.

The Act is particularly meaningful for hourly, i.e., low-wage, workers, who are likely to have trouble getting the time necessary to pump, but it is important for any woman who may face pushback from management. The Act expressly provides that “time spent to express breast milk must be considered hours worked if the employee is also working.”

The coronavirus pandemic, and ensuing percentage of women who left the workforce, highlighted how childcare disproportionately affects working mothers. Together, the PWFA and The PUMP Act will close holes in existing laws that cover pregnant and nursing employees, giving women job security even as they care for themselves and their children.

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