Welcome to the second quarter of 2023. Where does time go?
As part of your spring cleaning, take a few minutes to check your employee handbook to be sure it is current. Handbooks can be your best friend, or, if poorly written or outdated, your worst enemy. I propose a selection of topics ripe for updating.
PUMP for Nursing Mothers Act – Penalties Effective April 28, 2023
The remedies portion of the PUMP for Nursing Mothers Act (PUMP) will take effect on April 28, 2023. This means it’s time to comply if you have not been!
PUMP applies to all employers covered by the Fair Labor Standards Act (FLSA). PUMP expands existing FLSA obligations to provide all employees with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The employer obligation to provide a place for lactation that is shielded from view and intrusion by co-workers and the public (other than a bathroom) continues.
PUMP changes prior law by now covering all employees, not just non-exempt personnel. For non-exempt employees, the break time may still be unpaid unless otherwise required by federal or state law or municipal ordinance. For example, employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. If co-workers are paid during similar breaks for other reasons, employees should be paid for the lactation breaks, too. Remember that FLSA regulations expect that breaks of twenty minutes or less should be paid. (Check the details based on your particular situation.) Exempt employees should be paid their full weekly salary, regardless of the length or number of lactation breaks.
Employees may file private suits and file complaints with the Department of Labor. With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a ten-day cure period before filing a suit. Train your supervisors of the importance of such a complaint.
As with the pre-PUMP requirements, think creatively to come up with private spaces for nursing mothers to express breast milk. PUMP does not require employers to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing breast milk that is made available when needed by a nursing mother is sufficient if the space is shielded from view and free from intrusion from co-workers and the public. Allowing an employee to use an office with a door that locks would be convenient, but at some worksites lacking locking offices, employers may only be able to meet the employee needs – and PUMP requirements – using privacy screens, curtains, signage, portable pumping stations, and arrangements with other employers to provide private spaces.
The requirements extend to remote workers, who must be given time outside security and surveillance cameras, including video for online meetings and programs, for the necessary breaks.
Employers with fewer than fifty employees may be able to establish entitlement to an exemption if compliance with the law would cause undue hardship because of significant difficulty or expense.
The Department of Labor provides starting point resources for your planning.
Take the time before the penalties kick in to update any current lactation break policies that limit the option to non-exempt employees or which are otherwise inconsistent with PUMP’s requirements.
Pregnant Workers Fairness Act – Effective June 27, 2023
The Pregnant Workers Fairness Act (PWFA) prohibits employment practices that discriminate against qualified employees (those who can perform the essential functions of the job with or without reasonable accommodation) affected by pregnancy, childbirth, or related medical conditions. The PWFA applies to employers with at least fifteen employees and becomes effective on June 27, 2023. The EEOC will enforce the PWFA, which, in some respects, overlaps the pre-existing Pregnancy Discrimination Act.
Previously, many courts had determined that pregnancy alone was not a disability entitled to accommodation under the ADA. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions. Specifically, the PWFA makes it illegal for an employer to:
fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
Basically, the PWFA requires that employers treat employees affected by pregnancy, childbirth, or related medical conditions no differently than a disabled employee needing a reasonable accommodation. The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process that should be used to determine an appropriate reasonable accommodation. Unlike, the ADA, however, an employer may temporarily have to eliminate an essential job function under the PWFA. Further, the PWFA's lower standard of a known limitation, as compared to the ADA definition of disability, means that if an employee is considered disabled under the ADA due to a pregnancy-related condition, the employee would very likely be covered under the PWFA, but all employees covered under the PWFA would not be covered by the ADA given the ADA’s more demanding standard for a “disability.”
Employees do not necessarily get the accommodation of their choice. The statute provides a defense to damages for employers that, in good faith, work with employees to identify alternative accommodations that are equally effective and do not cause an undue hardship. If an employer has a reasonable accommodations policy, that policy should be reviewed and updated to note availability of accommodation for pregnancy, childbirth, and related medical conditions.
You can read up on the PWFA on the EEOC website.
Keep an Eye Out for EEOC Focal Points
The EEOC has announced that its 2023 Strategic Enforcement Plan will focus on protecting a broad range of “vulnerable workers.” This will include the following types of employees:
Immigrants
Temporary employees
Employees with intellectual disabilities
Employees with arrest or conviction records
Older workers
Low wage earners
Young workers
Employees with limited proficiency in English
The EEOC has also announced that it will be focusing on harassment for any protected reason, not just on sexual harassment.
Bear in mind that the EEOC is always on the look-out for statement cases to make its point on key issues, so take a hard look at your workplace environment, policies, and processes to identify gaps and weaknesses where trouble could erupt. Training to emphasize your expectations can be done internally and with little expense. Sensitizing your group to hot button subjects trains them to think twice about rash comments and ignoring little problems
2021 State Law Sexual Harassment Law Changes
In case you missed it, Texas adopted new sexual harassment laws back on September 1, 2021. All employers, including those with just one employee, can be held liable for sexual harassment under state law. The minimum threshold of fifteen employees no longer applies under the Texas Commission on Human Rights Act. Employees have up to 300 days to file a charge, not the previous180 days. The law requires “immediate” action to stop the harassment and take appropriate corrective measures, not merely the “prompt” action required previously.
Sexual harassment occurs if any unwelcome sexual advance, request for a sexual favor, or any other verbal or physical conduct of a sexual nature occurs, and (1) submission to the conduct is made a term or condition of employment; (2) the employee is disciplined for submission to or rejection of the conduct; (3) the conduct unreasonably interferes with the employe’s work performance; or (4) the conduct creates a hostile work environment.
Notably, the law also opens the door for individual employees to be held liable, not just the business. The law allows suit against any employee who “acts directly in the interest of an employer in relation to an employee.”
If you need to tweak your policy and roll out new training, there’s no time like the present!
Nothing in this post is legal advice. The content offers only general information directed to Texas employers. Readers should consult qualified legal counsel for advice concerning the best options for your particular situation and refer directly to agency resources, such as the Department of Labor, EEOC, or Texas Workforce Commission.