In a recent employment law webinar, Haynsworth Sinkler Boyd’s Chris Gantt-Sorenson discussed the federal and state laws applicable to pregnant, postpartum and nursing employees. It is important for employers to understand the requirements of these laws to ensure they provide the necessary accommodations and support for pregnant and postpartum workers. In this blog post, we will highlight the key takeaways from the webinar for employers regarding the Pregnancy Workplace Fairness Act (PWFA), South Carolina Pregnancy Accommodations Act (SCPAA), South Carolina Lactation Support Act, PUMP Act and the Americans with Disabilities Act (ADA).
Pregnancy Workplace Fairness Act (PWFA)
What do employers need to know about the PWFA?
This federal law went into effect on June 27, 2023. It applies to pregnant and postpartum employees, requiring employers to provide reasonable accommodations for pregnant, postpartum or lactating employees unless the employer can show doing so would cause an undue hardship. The “undue hardship” standard is narrowly applied under the PWFA.
What employers does the PWFA apply to?
The PWFA applies to private employers with fifteen (15) or more employees and all government employers.
Who is a “qualified individual” under the PWFA?
All pregnant or nursing employees are eligible for PWFA protection. The PWFA defines the term “qualified individual” differently than the Americans with Disabilities Act (ADA). The ADA defines a “qualified individual” as one who can perform the essential functions of the job with or without accommodation. Under the PWFA, employees are considered qualified if their inability to perform an essential function is temporary and the function could be performed in the near future and reasonably accommodated.
What are reasonable accommodations under the PWFA?
Examples of reasonable accommodations under the PWFA include but are not limited to allowing sitting, access to closer parking, flexible work hours, appropriately sized uniforms, additional break time, use of leave for recovery and being excused from strenuous activities.
Under the PWFA, employers may not:
- Require covered employees to accept any accommodation. Employers must offer alternatives that are reasonable if the initial accommodation requested cannot be granted, and these should be discussed with the employee in an interactive process, permitting the employee to offer alternatives and providing explanations as to what will or will not work and why. In other words, the discussion should be a mutual conversation instead of a one-way conversation.
- Deny employment opportunities based on the need for accommodations.
- Require covered employees to take leave if another reasonable accommodation is available.
- Retaliate against employees for reporting or opposing unlawful discrimination.
South Carolina Laws Related to Pregnancy and Nursing
South Carolina Pregnancy Accommodations Act (SCPAA)
The SCPAA applies to employees with medical needs arising from pregnancy, childbirth, nursing or related medical conditions. Specific accommodations are outlined in the statute and include light duty, more frequent breaks, seating, assistance with manual labor, modified work schedules and compensation for additional break periods. Any accommodation the employee proposes must be considered, and the statute does not provide an exhaustive list of potential accommodations.
South Carolina Lactation Support Act
The South Carolina Lactation Support Act requires employers to provide a reasonable unpaid or paid break time for expressing breast milk, depending on if the employer pays other employees for breaks. Employers must make reasonable efforts to provide a private location (not a bathroom) for employees to express milk.
What do employers need to know about the PUMP Act?
The PUMP Act was effective beginning December 29, 2022, extending reasonable break time and space protections. It covers an estimated 9 million employees, requires breaks, compensation, privacy, and prohibits retaliation. Importantly, it requires employers to provide a break for expressing to the employee every time the employee requests it, and for the length of time the employee needs to take.
DOL Guidance on the PUMP Act:
- Breaks: Employers must provide reasonable breaks for expressing breast milk. The frequency, duration, and timing depend on the nursing mother’s needs. While employers and employees can reach an agreement as to a schedule for the breaks, employers cannot require employees to adhere to a specific schedule and the schedules may be modified or changed.
- Compensation: Employers must compensate employees for break time if they compensate other employees for breaks. The employer need only pay for the same number of breaks and time allotment that the employer pays for other employee breaks.
- Space Requirements: Employers must provide a private, shielded, and intrusion-free space. Suggestions include vacant offices, partitions and locks on doors. The space must be accessible when the employee needs it.
- Small Employer Exemption: Employers with under 50 employees may be eligible for this narrowly defined exception and must establish undue hardship for any accommodation on an individual employee basis.
Americans with Disabilities Act (ADA) and Pregnancy-Related Conditions
Pregnancy-related impairments are covered under the ADA if they substantially limit major life activities, such as walking, standing or lifting. Examples of conditions associated with pregnancy include but are not limited to pelvic inflammation, carpal tunnel syndrome, sciatica, gestational diabetes and preeclampsia. Reasonable accommodations under the ADA may include breaks, job modifications, modified work schedules and equipment modifications.
Similarities between the PWFA, ADA and SCPAA
The PWFA, ADA and SCPAA all require employers to accommodate pregnant employees with job modifications. The inability to perform essential job functions should be analyzed carefully before denying any accommodation. The interactive process is required and should be documented. Undue hardship rarely applies but must be explained to the employee, assuming the accommodation cannot be granted, and this discussion should be documented. A distinction between the ADA and PWFA is what is considered “undue hardship,” which is more narrowly construed under the PWFA than the ADA due to the presumed temporary nature of the accommodation under the PWFA.
Employers must consider leave entitlements under their own policies, the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and the Pregnancy Workplace Fairness Act (PWFA). Employers should also apprise the employee of any paid benefits that might run concurrently with any approved leaves, such as the use of the employers’ provided paid leave benefits and/or any applicable short or long-term disability benefits.
The FMLA and ADA both require unpaid leave for pregnancy and medical conditions associated with pregnancy and childbirth. The ADA offers leave when an employee is otherwise not eligible for leave or additional leave once FMLA leave has expired, absent undue hardship. Employers must engage in the interactive process regarding leave under the ADA just as they do when accommodations are requested and document the decisions agreed upon by employer and employee.
Regarding the continuation of benefits while on leave, the FMLA requires health coverage to be continued at the same level when on leave. While the ADA does not have specific requirements, employers must not discriminate against employees who seek leave under the ADA.
Navigating the laws related to pregnant and postpartum employees can be challenging, but a proactive approach to understanding and complying with federal and state laws helps provide for more inclusive and supportive workplaces for everyone.
To learn more about these laws and how they interact with each other, watch the complimentary webinar recording here. For questions related to these employment laws or other workplace-related matters, please contact Chris or a member of the HSB Employment Law practice team.