The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. The Equal Employment Opportunity Commission (EEOC) issued proposed rules to implement the PWFA in August 2023, but it still has not published final regulations. However, a recent Illinois case regarding lactation breaks serves as an example for employers.
PUMP Act
The federal Providing Urgent Material Protections for Nursing Mothers Act (PUMP Act) amended the Fair Labor Standards Act (FLSA) to require employers to provide employees with reasonable break time to express milk for one year after birth. The Department of Labor (DOL) enforces the PUMP Act. Its regulations state the lactation room cannot be a bathroom, must be functional as a space to express milk, and must be shielded from view and free from intrusion from coworkers and the public.
PWFA
The Pregnant Workers Fairness Act requires employers to provide reasonable accommodations for an employee’s limitations related to pregnancy, childbirth, or other related medical conditions. When an employer requests an accommodation — such as a space to privately express milk — the employer must engage in an interactive dialog. The EEOC’s proposed PWFA regulations would expand the requirements for lactation rooms by requiring an employers’ lactation room must be in “reasonable proximity” to the employee’s usual work area.
Recent Illinois Case
A speech-language pathologist sued the Chicago Board of Education alleging that it violated state law because the lactation room offered was on a different floor of the building, too far away from her office. She also alleged the school should have provided her with temporary telework options. While the case was decided under Illinois law, some of the Illinois statutes are similar to the new federal laws.
After the teacher gave birth and returned to work, she asked for a private space for lactation at each of the three schools she provided services. She also asked for a flexible work schedule and then the ability to work part-time remotely when her students attended school remotely. Subsequently, she requested full-time telework.
The district court dismissed the case, and in late 2023, the appellate court affirmed the ruling. The teacher admitted telework was not “in the best interest of the students nor myself,” and state law prohibited speech-language pathologists from providing remote therapy except in certain settings. Further, the teacher admitted she never asked for a closer lactation space or stated the space provided was too far from her office.
Thus, the school district never had the option to engage in the interactive dialog to look at what options there were for a lactation space in “reasonable proximity” from the teacher’s office, because the teacher never expressed concerns to administration about the lactation room being on another floor of the building. Further, the employee’s request for telework was not a reasonable accommodation, because it would not allow the employee to perform the essential functions of the position.
Proposed PWFA Regulations
The PWFA’s reasonable accommodation requirements are more expansive than those under the Illinois state law. The proposed regulations would remove the Americans with Disabilities Act (ADA) requirement that employees be able to perform the essential functions of their job, either with or without a reasonable accommodation. Thus, under the PWFA, employers would be required to temporarily excuse employees from performing an essential function of the job as a reasonable accommodation if (1) the employee’s inability to perform an essential function of the job is temporary, (2) the employee could perform the essential function in the near future, and (3) the inability to perform the essential function can be reasonably accommodated.
In addition to potentially having to temporarily suspend an essential function of the job, the proposed regulations provide that other reasonable accommodations may include: part-time or modified work schedules; more frequent breaks; acquisition and modification of equipment, uniforms, or devices; allowing seating for jobs that require standing or standing in jobs that require sitting; appropriate adjustment or modification of examinations or policies; permitting the use of paid leave (whether accrued, short-term disability, or another type of employer benefit), or providing unpaid leave (including to attend healthcare-related appointments and to recover from childbirth); assignment to light duty; and telework.
Employer Considerations
While the EEOC has not yet published its final regulations, employers should remember the PWFA is already in effect, and employees can file charges and bring legal claims for failure to accommodate under the PWFA. Thus, it’s important for employers to engage in an interactive process. Further, employers cannot simply rely on existing ADA accommodation processes, because the PWFA may require employers to temporarily suspend essential functions for workers affected by pregnancy, childbirth, or related medical conditions.
Morgan E. Geffre
Foulston Employment Law Attorney