Federal Pregnancy Workers Fairness Act, PUMP Act, and similar Oregon and Washington State Laws

On June 27, 2023, the Pregnancy Workers Fairness act (PWFA) became effective. It requires that employers with 15 or more employees provide reasonable accommodations to an employee’s or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA requires employers to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same as request for accommodation related to disabilities under the Americans with Disabilities Act (ADA), with some exceptions.

The term qualified employee or applicant under the PWFA is different than the meaning of the term under the ADA. Under the PWFA, an employee or applicant is qualified if the employee or applicant can perform the essential functions of the position, with or without reasonable accommodation, except an employee or applicant is still considered qualified under the PWFA if:

• Any inability to perform an essential function is for a temporary period;
• The essential function could be performed in the near future; and
• The inability to perform the essential function can be reasonably accommodated.

Under the PWFA, reasonable accommodations are changes to the work environment or the way things are usually done at work. Examples of possible reasonable accommodations that might assist employees or applicants with known limitations related to pregnancy, childbirth, or related medical conditions including, but are not limited to:

• The ability to sit or drink water;
• Receive closer parking;
• Have flexible hours;
• Receive appropriately sized uniforms and safety apparel;
• Receive additional break time to use the bathroom, eat, and rest;
• Take leave or time off to recover from childbirth; and
• Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
  

Employers are required to provide these types of reasonable accommodations and any others that assist the employe or applicant, unless they would cause an undue hardship on the employer’s operations. An undue hardship is a significant difficulty or expense for the employer and is typically very difficult for an employer to establish.

The PWFA places a number of restrictions on how covered employers can treat employees or applicants with known limitations related to pregnancy, childbirth, or related medical conditions. Under the PWFA, covered employers cannot:

• Require an employee or applicant to accept an accommodation without a discussion about the accommodation between the employee or applicant and the employer (i.e., engaging in the interactive process);
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation; or
• Interfere with any individual’s rights under the PWFA.
  

The PWFA applies only to accommodation. There are a number of other Federal laws, like the Pregnancy Discrimination Act, ADA (when there is a pregnancy-related disability), and FMLA (protected leave), that provide additional protections to employees and applicants who are affected by pregnancy, childbirth, or related medical conditions.

The U.S. Equal Employment Opportunity Commission (EEOC) has provided additional guidance to employers on the PWFA at the following website: https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

The EEOC is charged with issuing additional regulations required to assist employers in complying with the PWFA. Once these regulations are published, UEA will share them with member companies in a future Law Alert.

PUMP Act
Since 2010, the Affordable Care Act has required that employers with 50 or more employees must provide nursing mothers reasonable break time and location to express breastmilk after the birth of a child up to one year after childbirth.

The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, which took effect on December 22, 2022, provides additional requirements employers need to take when providing time and space for breastfeeding parents.

The PUMP Act extends these rights to all breastfeeding employees for the first year of the baby’s life, including salaried exempt employees. Additionally, time spent expressing breastmilk must be considered hours worked if the employee is working while expressing breastmilk.

Employees must first notify the employer that they are not in compliance with the PUMP Act and provide their employer with 10 days to come into compliance before making a claim of liability.

Oregon Pregnancy and Nursing Laws
Oregon law protects pregnant employees and applicants and those experiencing health conditions related to pregnancy and childbirth, including nursing mothers for 18 months after the child’s birth, from discrimination, retaliation, and requires employers to provide reasonable accommodation, unless the employer can demonstrate that the reasonable accommodation causes an undue hardship.

All Oregon employers with six or more employees are covered under these laws with no waiting period prior to becoming eligible for these protections.

Reasonable accommodations for pregnant employees and applicants are not specifically limited, but may include:

• Acquisition or modification of equipment or devices;
• More frequent or longer break periods or periodic rest;
• Access to leave;
• Assistance with manual labor; or
• Modification of work schedules or job assignments.

It is also illegal to require an applicant or worker to accept a reasonable accommodation that is unnecessary to perform the essential functions of the job or to accept an accommodation if the applicant or worker does not have a known limitation, or to require a worker to take family leave, or any other leave, if the employer can make reasonable accommodation to the known limitations.

Employers must post signs in a conspicuous and accessible location informing employees of these rights under these laws. This link contains the model notice. In addition to posting, employers will need to provide a written copy of the notice to:

• New employees;
• Existing employees; and
• Any employee who informs the employer of the employee’s pregnancy, within 10 days.

Employers with 10 or fewer employees can apply for an exemption to providing lactation accommodation from the Oregon Bureau of Labor and Industries (BOLI) because of undue hardship to their business.

Washington Pregnancy and Nursing Laws
Washington’s workplace pregnancy accommodation law provides protections for employees and applicants who have health conditions related to pregnancy or childbirth, including nursing mothers for two years after the child’s birth, from discrimination and retaliation.

This law covers employers with 15 or more employees. Employers must make reasonable accommodation for work restrictions from an employee’s physician related to pregnancy and childbirth, unless the employer can demonstrate that the reasonable accommodation causes an undue hardship.

Employers must provide the following accommodations for a pregnant employee if they request:

• Frequent, longer, or additional restroom breaks;
• Modified food or drink policies;
• The ability to sit more frequently;
• Not to lift objects over 17 pounds; and
• The need to express breast milk.

Employers cannot request a doctor’s note for these accommodations.

Employers can request documentation from an employee’s health care provider outlining the need for accommodation when you request involves:

• Job restructuring, including:
  • Schedule changes such as part-time or modified work schedules
  • Job reassignments
  • Providing or modifying equipment or devices
  • Changes to your workstation
• Scheduling flexibility for prenatal visits;
• A temporary transfer to a less strenuous or less hazardous position; and
• Any further accommodation needed by the employee.

UEA attorneys are available to address your continued questions and concerns regarding compliance with these Pregnancy related laws.