Article By: Law Clerk Jose De Luna
Employers across the country are privileged to have working mothers that
elect to join the workforce. It is important that employers remain cognizant
of their employees’ balancing of pregnancy and childbirth with their
professional aspirations, especially when they are entitled to legal
protections. Recent federal legislation has sought to protect the rights of
these working mothers. The Providing Urgent Maternal Protections for
Nursing Mothers Act (“PUMP”), passed in 2022, was a landmark piece of
legislation accommodating employees need to pump breastmilk. The PUMP
Act can be broken down into four requirements in providing employees
access to a place to pump breast milk at work. The location must be: (1)
shielded from view; (2) free from intrusion from coworkers and the public;
(3) available each time it is needed by the employee; and (4) not a
bathroom. When the Pregnant Workers Fairness Act’s (“PWFA”) final rule
went into effect on June 18, 2024, its regulations continued a trend in
policy and society, focusing on the importance of lactation and nursing.
The PWFA and Lactation
While the PWFA is not an amendment to the PUMP Act, the final
regulations list examples of potential lactation-related accommodations.
Those include but are not limited to, that the area for lactation is in
reasonable proximity to the employee’s usual work area, regularly cleaned,
has electricity, appropriate seating, a surface sufficient to pump, and is in
reasonable proximity to a sink and refrigerator to store milk.
The Equal Employment Opportunity Commission leaves the potential
accommodations open-ended. Accommodations may vary on a case-by-case
basis, and it is crucial that employers participate in the required interactive
process to meet their employees’ needs. The laundry list of potential
accommodations ensures two things. First, employers should not solely
focus on the requirements of the PUMP Act without keeping the PWFA in
mind. Second, employers who routinely have pregnant employees year-
round should establish a dedicated space for lactating employees, ensuring
compliance with both Acts. Locations such as utility closets or storage
rooms may not fulfil the needs of regular cleaning, seating, or surface
sufficient to pump.
The PWFA and Nursing
Perhaps one of the most demanding accommodations under the PWFA is
allowing nursing during work hours when the employee’s regular workplace
is in close proximity to the child. This is significant for employers with
telework or work-from-home positions where an employee may not need to
make daycare arrangements for their child. Additionally, employers
offering daycare services, as some Texas school districts do, may potentially
fall under the umbrella of employers required to allow nursing during work
hours.
Before You Deny an Accommodation
The interactive process is not just necessary, but an opportunity for the
dialogue to result in a reasonable solution. One thing is certain: It never
hurts to begin the interactive process by asking your employees, “How can I
help you?” The PWFA is a new law and many questions around its
ambiguities remain. What constitutes “regular cleaning” or what unit of
measurement applies to “close proximity?” Denying an accommodation on
a new law, especially on its ambiguities, may lead to consequences.
Employers are encouraged to seek legal counsel as they attempt to both
provide and deny accommodations related to the PWFA and Pump Act.
