By Kevin Lungwitz
The Pregnant Workers Fairness Act went into effect in 2023.1 The EEOC finalized its regulations in April 2024.2 Also in 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (known as the PUMP Act) began. These laws are new enough that they may not yet be reflected in your school board’s policies. (If so, they would likely show up in Policy DG.) What are these new laws and how do they affect school employees?
What is the Pregnant Workers Fairness Act (PWFA)?
The PWFA requires covered employers (including Texas school districts) to provide a “reasonable accommodation” to an employee’s work limitation related to pregnancy, childbirth, or related medical conditions. If “reasonable accommodation” sounds familiar, you are correct. The PWFA borrows heavily from the Americans with Disabilities Act (ADA). As we have known for decades, the ADA requires a covered employer (including Texas school districts) to provide a reasonable accommodation for a worker’s disability. Now, an employee’s work limitation that arises with pregnancy issues must be reasonably accommodated like a disability under the ADA.
What is a “Limitation” Under the PWFA?
A limitation under the PWFA is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The ‘‘physical or mental condition” may be a modest, minor, and/or episodic impediment or problem and must be construed broadly to protect the worker. The pregnancy “limitation” under the PWFA need not be a “disability” under the ADA.
What are Some Examples of Reasonable Accommodations for a Pregnant Worker?
- Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
- Changing food or drink policies to allow for a water bottle or food;
- Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
- Changing a uniform or dress code or providing safety equipment that fits;
- Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
- Telework;
- Temporary reassignment;
- Temporary suspension of one or more essential functions of a job;
- Leave for health care appointments;
- Light duty or help with lifting or other manual labor; or
- Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.
There could be more, depending on the facts, as each case is different.3
What is the School District Obligated to Do Under the PWFA?
A school district must:
- Make a reasonable accommodation for pregnancy limitations, unless it would cause an “undue hardship,” another recognizable term from the ADA.
- Enter into an “interactive process,” just like with the ADA, to brainstorm a reasonable accommodation. The district cannot force an accommodation on the employee if there is a reasonable accommodation preferred by the employee.
- Allow the accommodation, if it will allow the employee to continue to work, as opposed to forcing the employee to take leave.
- Ignore a limitation or the need for an accommodation when considering employment opportunities to a qualified applicant.
- NOT discriminate or retaliate against anyone who requests or uses a reasonable accommodation or reports such discrimination or retaliation.
What is the Pump Act?
The PUMP Act went into effect in 2023. Under the PUMP Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth.”4 The PUMP Act amends the Fair Labor Standards Act and is enforced by the Department of Labor, the same agency that enforces the FLSA. Previously, the FLSA provided lactation protections only to hourly, not salaried, employees. Now it applies to all.
Are Some Employers Exempt?
While all employers, including Texas school districts, must comply with the PUMP Act, employers with fewer than 50 employees may claim an undue hardship exemption, if the facts would support such a claim.
How Many Breaks Can a Lactating Employee Take and When?
Employees are entitled to take reasonable breaks, and have a space to express milk, as frequently as needed by the nursing employee, for up to one year following the birth of the employee’s child. The frequency and length of such breaks will obviously vary from case to case.
Are the Breaks Paid or Unpaid?
If the employee performs any work while on a lactation break, the break must be paid. As with the FLSA, paid versus unpaid leave will vary between hourly and salaried employees.
Are There More Requirements for the Space?
As stated above, the space cannot be a bathroom, even if a bathroom is the only space available. (Under current Texas law, an employer could provide a “single-user” bathroom for lactating employees, but the PUMP Act does not allow this and overrides state law.) While the space need not be permanent, there must be an available space when the employee needs it. Employers would be advised to create a permanent space that satisfies the statute or be ready to provide such a space on short/immediate notice. Obviously, the space must be free from intrusion and shielded from view.
Some of this may be familiar. Since about 2015, Texas law has required employers, including school districts, to provide support for lactating employees. (See policy DG.) The new PUMP Act only strengthens and adds to the protections provided by state law.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1 42 United States Code Sec. 2000gg et seq.
229 Code of Fed. Reg. Part 1636
3 https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act
4See 29 U.S.C. Sec. 218d. Also see the U.S. Dept. of Labor FAQ’s: https://www.dol.gov/agencies/whd/nursing-mothers/faq. Also see your school policy DG.
TEPSA News, November/December 2024, Vol 81, No 6
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
