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Federal Legislation Expands Protections for Pregnant Employees in the Workplace


On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act (“Act”). Among other provisions, the Act contained two amendments that expand federal protections for pregnant and nursing employees—the Pregnant Workers Fairness Act (the “PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”), respectively. Although Nebraska employees have received similar protections since 2015, these new laws establish a minimum level of protection that closes the federal gap for employees needing reasonable accommodations due to pregnancy-related conditions in the workplace.

Pregnant Workers Fairness Act

The PWFA expands protections for qualified employees affected by pregnancy, childbirth, or related medical conditions, beyond those provided by the Pregnancy Discrimination Act of 1978. The PWFA mirrors the language of the Americans with Disabilities Act of 1990, which makes it unlawful for a covered employer to deny reasonable accommodations to a qualified individual, unless such accommodations would impose an undue hardship on its business operations.

The PWFA also makes it unlawful for a covered employer to: (1) require a qualified employee to accept an accommodation without undergoing the interactive process; (2) deny employment opportunities to a qualified employee based on the need for a reasonable accommodation; (3) require a qualified employee to take leave when another reasonable accommodation is available; and (4) take adverse action against a qualified employee for requesting an accommodation.

The PWFA covers all private employers, state and local governments, and education institutions with more than 15 employees. Damages under the PWFA are the same as those available under Title VII of the Civil Rights Act (“Title VII”). Individuals subject to discrimination under the PWFA may be eligible for back pay, compensatory and punitive damages, and reasonable attorneys’ fees. Although the PWFA takes effect on June 27, 2023, the Equal Employment Opportunity Commission has until the end of 2023 to promulgate regulations that provide enforcement guidance and examples of reasonable accommodations.

Providing Urgent Maternal Protections for Nursing Mothers Act

The PUMP Act amends the Fair Labor Standards Act (the “FLSA”) to provide a standalone provision expanding breastfeeding accommodations in the workplace. Under the PUMP Act, covered employers must provide employees with: (1) reasonable break times to express breast milk for nursing children for one year after their child’s birth; and (2) a private space, other than a bathroom, for the purpose of expressing breast milk. Remote workers are also entitled to take reasonable pump breaks. Employers are not required to compensate employees for pump breaks if they are completely relieved from work duty; provided, however, if an employer provides employees with paid breaks, breaks used to pump milk must be compensated in the same manner as other paid breaks. 

The PUMP Act is silent as to what constitutes reasonable break times or how many breaks are permitted, as employee needs vary. Most nursing mothers need at least 15-20 minutes to pump, plus time to wash and/or store their pumping equipment, as necessary. The PUMP Act also does not specify the number of breaks to which a nursing employee is entitled during the workday. According to the CDC, nursing mothers should “try to pump as often as [their] baby is drinking breast milk,” which can be as frequently as every two hours for younger babies.[1] An employer cannot deny a break for a covered employee who needs to pump.

To enforce these protections, an employee must inform their employer of its failure to provide an adequate private space for expressing breast milk. Upon notification, employers have a ten-day period to cure a violation before an employee may file suit for any employer violation. However, the ten-day cure period does not apply if an employer retaliates against an employee’s request for an accommodation, or indicates it will not comply with the provisions of the PUMP Act. Remedies available to employees are the same as those under the FLSA, which may include lost wages, liquidated damages, and punitive damages where available.

Covered employers under the PUMP Act are the same as those covered under the FLSA. Employers with less than 50 employees are exempted from these requirements if compliance would impose undue hardship, considering the size, resources, nature, and structure of the employer’s business. Additionally, the PUMP Act does not cover air carrier crewmembers, and it contains some exemptions for rail carriers and motor coach services operators, including delayed applicability of the new requirements until December 2025.

Previously, similar accommodations were only available to employees eligible for overtime pay under the FLSA. Now, all FLSA-covered employees are provided breastfeeding accommodations, regardless of overtime eligibility. The PUMP Act took effect immediately on December 29, 2022; however, enforcement of most of the provisions, including an employee’s private right of action and the availability of monetary remedies, will not take effect until April 28, 2023.[2]

Nebraska Fair Employment Practice Act

Since 2015, Nebraska has recognized increased protection for pregnant and nursing employees who now receive federal coverage under the PWFA and PUMP Act. The Nebraska Fair Employment Practice Act (the “NFEPA”) covers the four prohibitions recognized by the PWFA discussed above, in addition to other forms of prohibited conduct. While some of those additional protections may be covered by Title VII’s general protections against sex-based discrimination, Nebraska has taken the next step by specifically enumerating the types of conduct that constitute discrimination against a pregnant or nursing employee.

For example, Nebraska prohibits the use of administration or qualification criteria, such as performance metrics or pre-employment qualification tests, that tend to discriminate against pregnant or nursing employees. Some tests or criteria may be used despite their discriminatory effect if the employer can show the test or criteria is job-related for the position in question and is consistent with business necessity. Nebraska also strictly limits the use of pre-employment medical testing and inquiries into whether a job applicant or employee is pregnant or nursing.

Employers seeking guidance on its compliance with the PWFA, PUMP Act, or the NFEPA should consult a member of Koley Jessen’s Labor and Employment Department.

[1] Centers for Disease Control and Prevention, Pumping Breast Milk,

[2] The Department of Labor recently published new guidance on PUMP Act coverage and protections in the lead up to enforcement. See U.S. Department of Labor, FLSA Protections to Pump at Work,


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