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The Birth of New Rights for Pregnant, Postpartum, and Nursing Employees

Labor and Employment Law

On December 29, 2022, President Biden signed into law the Pregnant Workers Fairness Act (PWFA)[1] and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act).[2] The PWFA goes into effect June 27, 2023. The PUMP for Nursing Mothers Act was effective immediately. The new laws greatly expand protections for pregnant, postpartum, and nursing employees in significant ways.

The PWFA is modeled after the Americans with Disabilities Act (ADA) and focuses on the obligation that employers provide reasonable accommodations to pregnant workers and applicants for employment, so long as the accommodation does not pose an undue hardship. The PUMP for Nursing Mothers Act addresses breastfeeding. Federal law already requires employers to provide reasonable breaks and a private, clean space to express milk for hourly, non-exempt employees. The new law extends those protections to millions of employees who were previously excluded from those rights, including salaried, exempt workers.

This article explores the history of this new legislation, provides an overview of the two laws, and summarizes key points as it pertains to these new rights.

Background and Legislative History of the PWFA

The PWFA was first introduced to Congress in May 2012 and has been introduced in every Congress since then.[3] It passed the House in May 2021 and cleared the Senate committee later that year.[4] Over the years, the PWFA garnered bipartisan approval and was endorsed by over 230 organizations, including the Society for Human Resource Management (SHRM).[5] On December 22, 2022, Congress passed the PWFA as an amendment to the Consolidated Appropriations Act (2023), which President Biden signed on December 29, 2022.

Federal laws pertaining to pregnancy, childbirth, and related medical conditions, including breastfeeding, are not new. Indeed, the Pregnancy Discrimination Act (PDA) was enacted in 1978 and protects individuals from discrimination based on pregnancy, childbirth, and related medical conditions. Under the ADA, which was signed into law in 1990, reasonable accommodations are required to be granted to individuals with disabilities, including disabilities related to pregnancy. However, pregnancy itself is not a disability under the ADA and a great deal of litigation has resulted from denial of requests for accommodation by pregnant and postpartum workers. In many of those cases, the pregnant and postpartum employees were not successful in their claims under the PDA and the ADA. The PWFA was enacted to address that potential lack of protection for qualified pregnant and postpartum workers seeking modification of their working conditions. As Sen. Bob Casey succinctly stated, “This bill is about two words: reasonable accommodations.”[6]

Like the PWFA, the PUMP Act extends protections to additional workers. In 2010, the Fair Labor Standards Act was first amended to require employers to provide break time and a clean, private space for lactation for certain categories of employees. The PUMP for Nursing Mothers Act expands those protections to others.

The PDA and ADA

Before the PWFA, the legal obligation to accommodate pregnant and postpartum employees in the workplace was governed by the PDA,[7] the ADA,[8] and caselaw interpreting those acts. Each law addressed a specific concern related to discrimination in a limited manner. The sponsors of the PWFA intended the new law to expand the scope of the protections available to pregnant and postpartum employees.

The PDA, which amended Title VII,[9] clarifies that the prohibition of discrimination “because of sex” under Title VII includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.”[10] It further provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as others not so affected but similar in their ability or inability to work.”[11]

Though the PDA protects workers from discrimination, the PDA does not expressly provide for reasonable accommodations to women affected by pregnancy, childbirth, or related medical conditions. In 2015, though, the Supreme Court held that an employer’s failure to provide an accommodation to a pregnant employee that was widely provided to similarly-situated non-pregnant employees would constitute discrimination.[12] This created what amounted to an implied right to reasonable accommodation.

Many cases have straddled the line between a claim for failure to accommodate and a claim for discrimination. The Supreme Court’s most recent illustration of the difference between the two claims is set forth in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015). Young was a driver for UPS. She was expected to lift parcels weighing up to 70 pounds. After she became pregnant, her doctor recommended lifting restrictions of not more than 20 pounds, and later in her pregnancy, not more than 10 pounds. She requested light duty, but UPS refused. Young was forced to go on leave and lost her employee medical coverage.

Young argued UPS discriminated against pregnant drivers because it accommodated other drivers who were not pregnant but were “similar in their…inability to work.” UPS countered that it accommodated categories of drivers who had become disabled through on-the-job injuries, those who had lost federal DOT certifications, or those who had disabilities covered by the ADA. Young offered evidence that UPS also accommodated drivers who were injured off the job or had disabilities from diseases including cancer, and that the only light duty requests UPS declined were from pregnant women.

Ultimately, the Supreme Court held in favor of Young, finding that employers making accommodations for other similarly situated workers must also provide pregnant workers with comparable accommodations.[13] But, there is no standalone duty to accommodate under the PDA. The Supreme Court’s holding in Young has been interpreted to mean that pregnant workers are only entitled to accommodations to the extent that their employers have accommodated non-pregnant workers who are “similar in their ability or inability to work.” In other words, the plaintiff must identify a non-pregnant, similarly situated comparator who was treated more favorably.

After Young, many courts were presented with cases involving pregnancy discrimination claims that hinged on comparator evidence.

In EEOC v. Wal-Mart Stores E., L.P., 46 F.4th 587, 592 (7th Cir. 2022), the Seventh Circuit upheld summary judgment in favor of Walmart, finding that Walmart had asserted legitimate, nondiscriminatory reasons for excluding pregnant workers from accommodation, and the EEOC did not meet its burden of showing that such reasons placed a significant burden on pregnant employees. Pregnant Walmart workers requested accommodations for lifting and standing restrictions. Walmart refused, citing reasons for its now-defunct “Temporary Alternate Duty” policy, which permitted alternative duty assignments only to those injured on the job. The Seventh Circuit ruled that “compliance with a state workers’ compensation scheme is a neutral reason for providing benefits to employees injured on the job but not pregnant employees.”[14]

Courts were also presented with cases involving discrimination claims that hinged on the definition of a “related medical condition.”

In Hicks v. City of Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017), the 11th Circuit recognized breastfeeding as a pregnancy-related condition protected under the PDA, but the PDA did not require specific accommodations be provided to Hicks, a breastfeeding patrol officer.

Hicks worked for the Tuscaloosa Police Department. After returning from FMLA leave after the birth of her child, Hicks was reassigned to the patrol division, which required her to wear a ballistic vest and work the streets. Hicks’s doctor recommended that she be considered for alternative duties because the ballistic vest she was now required to wear was restrictive and could cause breast infections that could lead to an inability to breastfeed.

Accordingly, Hicks requested a desk job where she would not be required to wear a vest and assurances that she would be allowed to take breaks to breastfeed. The request was denied. Instead, Hicks was given two options: 1) return to patrol but do not wear the vest or, 2) return to patrol and wear a “specially fitted vest” that featured gaping holes. Both options posed extreme safety risks. Rather than accept either accommodation, Hicks resigned and sued the city for pregnancy discrimination, constructive discharge, and FMLA interference and retaliation. At trial, the jury found that reassignment of Hicks to patrol upon return from childbirth was discriminatory in violation of the PDA, and that the city’s failure to accommodate Hicks’s breastfeeding requests resulted in discriminatory constructive discharge in violation of the PDA.

On appeal, the 11th Circuit analyzed whether breastfeeding is a “related medical condition” protected under the PDA. The court concluded that based on a plain reading of the PDA, the act of breastfeeding is covered under the PDA as a related medical condition and employees may not be discriminated against or retaliated against on that basis. However, the court explicitly stated that under the PDA employers do not have to provide “special accommodation” to breastfeeding workers.[15] And, while Hicks’s case “straddled the line” between discrimination and accommodation, the court found that Hicks proved her case of discrimination under the PDA because she showed that other employees with temporary injuries were given “alternative duty,” and she was denied that same request.[16] If she had not offered the comparator evidence but instead traveled on a failure to accommodate theory, her claim would have failed under the PDA.

Likewise, Hicks’s claim would have failed had she pursued a claim of failure to accommodate under the ADA. Courts have routinely held that pregnancy itself, absent unusual circumstances, is not considered an impairment or disability under the ADA.[17] Only a pregnancy-related impairment that substantially limits a major life activity is a disability for which an employer may be required to provide reasonable accommodations.[18] This standard leaves women with less serious pregnancy-related impairments, but who still may need accommodations, without protection under the ADA.

The Pregnant Workers Fairness Act: Requirements and Remedies

Effective June 27, 2023, the PWFA ensures that public and private employers with at least 15 employees provide a reasonable accommodation to qualified pregnant or postpartum employees or applicants with a known limitation, unless doing so would impose an undue hardship on the employer.[19] While the PWFA is closely modeled after the ADA, a qualified employee need not have an impairment that meets the definition of “disability” under the ADA. Rather, the obligation to engage in the interactive process to identify a reasonable accommodation under the PWFA is triggered when a “known limitation” of pregnancy is communicated to the employer.

The PWFA applies only to accommodations, and prohibits discrimination and retaliation based on reasonable accommodations related to pregnancy. Specifically, it is unlawful for a covered employer to:

1) fail to reasonably accommodate the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer;

2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;

3) deny employment opportunities to a qualified employee if such denial is based on the need for a reasonable accommodation under the PWFA;

4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided;

5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation;

6) retaliate against employees for opposing any act or practice made unlawful by the act or participating in an investigation, proceeding, or hearing; and

7) coerce, intimidate, threaten, or interfere with any individual in the enjoyment or use of, or aiding another in the enjoyment or use of, rights afforded or protected by the PWFA.[20]

A “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, whether or not the condition meets the definition of a disability under the ADA.[21] The PWFA terms “reasonable accommodation” and “undue hardship” have the same meaning as they do under the ADA. Likewise, the PWFA uses ADA terminology to require the use of the “interactive process” for establishing reasonable accommodations.[22]

To be entitled to protection under the PWFA, the individual must be a “qualified employee.” Though the protections of the ADA are likewise limited to “qualified” employees and applicants who are able to perform the essential functions of their job with or without reasonable accommodation, the PWFA’s definition of “qualified employee” has a more expansive reach. Employees or applicants are considered qualified even if they are temporarily unable to perform an essential function of the job so long as they will be able to do so in the near future and a reasonable accommodation is available.[23]

The Equal Employment Opportunity Commission (EEOC) will have the same power, remedies, and procedures as provided under Title VII in enforcing the new law. The EEOC is also tasked with promulgating regulations to carry out the new law, and will issue a proposed version of the regulations, seeking input and public comment before regulations become final.[24]

After exhausting administrative remedies, employees may bring suit against their employer, and may be awarded the same relief under the PWFA as under Title VII, including restatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. The act provides similar relief for employees of the federal government covered by the Congressional Accountability Act, Ch. 5 of Title 3 of the U.S. Code, the Government Employee Rights Act of 1991, and §717 of the Civil Rights Act of 1964.[25]

The PWFA provides a defense to damages where the employer can demonstrate that it engaged in “good faith efforts” to identify and make a reasonable accommodation that would provide “an equally effective opportunity to that employee” without causing an undue hardship for the employer.[26]

The EEOC has stated that it will start accepting charges of discrimination under the PWFA on June 27, 2023, and that the concerns raised in the charge must have occurred on or after June 27, 2023.[27] Until then, the EEOC advises that pregnant workers who need accommodation may have a right to receive an accommodation under existing federal or state law. The EEOC will analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA, in addition to the ADA and/or Title VII, if applicable.[28]

Potential Interpretations and Accommodations Under the PWFA

Without yet the benefit of regulations and interpretive guidance from the EEOC,[29] it is unclear where the bounds of “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” will lie. Court rulings that have interpreted similar language under the PDA may provide insight into how this language may be interpreted under the PWFA.

What Is a Related Medical Condition? — The PWFA does not define “related medical condition.” In deciding that lactation was a related medical condition of pregnancy under the PDA, the Fifth Circuit Court of Appeals first looked to common dictionary definitions of lactation to find that it is a physiological process caused by being pregnant and giving birth.[30] The Fifth Circuit then consulted the dictionary definition of “medical condition,” which included any physiological condition, and concluded that the physiological condition of lactation was a medical condition related to pregnancy.[31]

Similarly, the 11th Circuit Court of Appeals took a plain reading of the PDA to find that breastfeeding is likewise covered by the PDA. Applying the statutory interpretation canon ejusdem generis,[32] the 11th Circuit found that breastfeeding is a sufficiently similar gender-specific condition covered by the catchall phrasing of the PDA. The 11th Circuit further found this reading to be consistent with the very purpose of the PDA.

These cases suggest that under the PWFA, employers will be expected to accommodate physical or mental conditions not only arising out of pregnancy and childbirth, but also physical or mental conditions arising out of related medical conditions. For example, as lactation has been held to be a medical condition related to pregnancy or childbirth, a physical condition arising out of lactation (such as mastitis) would likely also be covered under the PWFA as a known limitation requiring reasonable accommodation.

A “known limitation” also encompasses physical or mental conditions that are “affected by” pregnancy, childbirth, or related medical conditions. Just how attenuated from the pregnancy itself the condition may be is yet to be known.

Can Employers Request Verification From A Medical Provider? — It is unclear from the plain language of the statute whether employers will be able to verify conditions and requested accommodations by requiring documentation from an employee’s medical provider. The law makes use of the ADA’s “interactive process” terminology, which suggests that employers may be able to request supporting documentation.[33] Of course, there will be circumstances in which an employer must accommodate a qualified employee under both the ADA and the PWFA.

What are Examples of Potential Accommodations? — The PWFA uses the term “reasonable accommodation” as defined under the ADA. Under the ADA, a “reasonable accommodation” means:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.[34]

Reasonable accommodations contemplated by the PWFA “do not need to be, nor are they typically, complicated or costly.”[35] Notably, an employer may not require a covered employee to take paid or unpaid leave if another reasonable accommodation is available. Examples of reasonable accommodations have included the ability to sit or drink water, receive closer parking spaces, have flexible or adjusted hours, receive appropriately sized uniforms and safety apparel, receive additional break time to use the bathroom, eat, and rest, and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.[36] All of these examples appear to apply to conditions that might arise during pregnancy. The PWFA would also require reasonable accommodation of known limitations after birth as well.[37]

Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP for Nursing Mothers Act amends the Fair Labor Standards Act (FLSA)[38] to extend to all nursing employees the rights to receive reasonable break time to express breast milk and a private place to do so.[39]

In 2010, Congress first amended the FLSA through the Break Time for Nursing Mothers Act.[40] While similar to the requirements of the PUMP for Nursing Mothers Act, it did not apply to most exempt employees, as defined under the FLSA.

Effective December 29, 2022, the PUMP for Nursing Mothers Act specifically guarantees most breastfeeding employees a reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth each time such employee has need to express the milk. The employee is also entitled to a place, other than a bathroom, which may be used to express breast milk. The location must be shielded from view and free from intrusion from coworkers and the public.[41]

The PUMP for Nursing Mothers Act excludes small employers with fewer than 50 employees if compliance would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.[42]
There are also limited industry exemptions for crew members of air carriers. The PUMP for Nursing Mothers Act also includes specific requirements for the applicability to certain employees of rail carriers and motorcoach services operators. An employer may not deny a covered employee a needed break to pump.[43] Additionally, employees who telework are eligible to take pump breaks on the same basis as other employees and must also be free from observation by any employer-provided or required video system.[44]

In general, employers are not required to compensate employees during the break time unless otherwise required by federal, state, or local law. However, break time under the PUMP for Nursing Mothers Act will be considered hours worked if the employee is not completely relieved from duty during the entirety of the break. When employers provide paid breaks, an employee who uses such break time to pump breast milk must be compensated in the same way that other employees are compensated for break time.[45]

An employee must provide notice of a potential violation to an employer and a ten-day opportunity to cure prior to commencement of an action under the PUMP for Nursing Mothers Act. There may be limited exceptions to the notice requirement for retaliatory actions or an employer’s indication of no intent to provide a place for the break.

Beginning April 28, 2023, regardless of whether an employee experienced retaliation, an employer who violates an employee’s right to reasonable break time and space to pump breast milk may be liable for unpaid minimum or overtime wages, as well as employment, reinstatement, lost wages, liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.[46]


These laws reflect the expanded protections for the pregnant and postpartum workforce. Employers and practitioners should take this opportunity to update workplace policies and ensure management and human resources personnel are adequately trained on the obligations of employers under these new laws.

[1] Consolidated Appropriations Act 2023, Div. II, Pub. L. No. 117-328, 136 Stat. 4459.

[2] Id. at Div. KK.

[3] H.R. Rep. 117-27, at 8-11 (2021).

[4] Id.

[5] Id. at 5.

[6] 117 Cong. Rec. S10070 (daily ed. Dec. 22, 2022) (statement of Sen. Casey).

[7] 42 U.S.C. §2000e(k).

[8] 42 U.S.C. §12101, et seq. (“ADA” herein refers to the ADA Amendments Act of 2008 or “ADAAA”).

[9] 42 U.S.C. §2000e(k).

[10] Id.

[11] Id.

[12] See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015).

[13] Id.

[14] Wal-Mart, 46 F.4th at 592; Legg v. Ulster County, 820 F.3d 67 (2d Cir. 2016).

[15] Hicks, 870 F.3d at 1260-61.

[16] Id.; 42 U.S.C. §2000e(k).

[17] See, e.g., Selkow v. 7-Eleven, Inc., No. 11-CV-456, 2012 WL 2054872, at *14 (M.D. Fla. 2012) (“Absent unusual circumstances, pregnancy is not considered a disability — temporary or otherwise — under the ADA or FCRA.”); Jeudy v. Holder, No. 10-22873, 2011 WL 5361076, at *4 (S.D. Fla. 2011) (noting “that pregnancy is not normally considered a disability”); Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 975-76 (S.D. Iowa 2002) (noting that “a majority of federal courts hold that absent unusual circumstances, pregnancy-related medical conditions do not constitute a disability”); Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1999) (“pregnancy and related medical conditions do not, absent unusual circumstances, constitute a ‘physical impairment’ under the ADA”); Darian v. Univ. Mass. Boston, 980 F. Supp. 77, 85 (D. Mass. 1997) (“pregnancy-related conditions are not disabilities under the ADA”).

[18] 29 C.F.R. Part 1630, App. §1630.2(h) (“Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. However, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a ‘record of’ a substantially limiting impairment, or may be covered under the ‘regarded as’ prong if it is the basis for a prohibited employment action and is not ‘transitory and minor.’”).

[19] Consolidated Appropriations Act 2023, Div. II, §103, Pub. L. No. 117-328, 136 Stat. 4459.

[20] Id.

[21] Id. at Div. II, §102(4).

[22] Id. at §102(7).

[23] Id. at §102(6).

[24] Id. at §105.

[25] Id. at §104.

[26] Id. at §104(g).

[27] U.S. Equal Employment Opportunity Commission, What You Should Know About the Pregnant Workers Fairness Act (Feb. 10, 2023),

[28] Id.

[29] However, the EEOC Enforcement Guidance for Pregnancy Discrimination and Related Issues published on June 25, 2015, remains in effect with respect to the PDA and ADA. See U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Pregnancy Discrimination and Related Issues (Feb. 14, 2023),

[30] EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428-29 (5th Cir. 2013).

[31] Id.

[32] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012) (explaining that “when a drafter has tacked on a catchall phrase [to] an enumeration of specifics,” additional inclusions would be appropriate if sufficiently similar).

[33] Consolidated Appropriations Act 2023, Div. II, §102(7), Pub. L. No. 117-328, 136 Stat. 4459.

[34] 29 C.F.R. §1630.2(o).

[35] H.R. Rep. 117-27 at 11 (2021).

[36] See note 27.

[37] Consolidated Appropriations Act 2023, Div. II, §102(4), Pub. L. No. 117-328, 136 Stat. 4459; see also Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1260 (11th Cir. 2018) (stating that “[t]he PDA would be rendered a nullity if women were protected during a pregnancy,” but not after giving birth).

[38] 29 U.S.C. §213.

[39] Consolidated Appropriations Act 2023, Div. KK, Pub. L. No. 117-328, 136 Stat. 4459.

[40] Patient Protection and Affordable Care Act §4207, Pub. L. No. 111-148, 124 Stat. 119.

[41] Consolidated Appropriations Act 2023, Div. KK, §102, Pub. L. No. 117-328, 136 Stat. 4459.

[42] Id.

[43] U.S. Dept. of Labor Wage and Hour Division, Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work (Feb. 10, 2023),

[44] Id.

[45] Id.

[46] Consolidated Appropriations Act 2023, Div. KK, §102(b), Pub. L. No. 117-328, 136 Stat. 4459.

Erin JacksonErin Jackson is a founding shareholder of Johnson Jackson in Tampa, a boutique law firm specializing in management side labor and employment law. Jackson has been board certified by The Florida Bar in labor in employment law since 2006 and is also a Florida Supreme Court circuit civil mediator.

Eliza HorneEliza Horne is an associate attorney at Johnson Jackson in Tampa. She represents public and private employers in various industries. Horne is passionate about counseling management when challenging workplace issues arise and has successfully defended employers in lawsuits brought under a variety of state and federal employment laws.

This column is submitted on behalf of the Labor and Employment Law Section, Sacha Dyson, chair, and Alicia Koepke, editor.

Labor and Employment Law