As new mothers often turn to “What to Expect When You’re Expecting” to be prepared for parenting, employers need to brush up on new laws to make sure they are supporting pregnant and nursing mothers while meeting legal requirements.
New Hampshire law (RSA 354-A:7) requires employers with six or more employees to provide all female employees with unpaid, job-protected time away from work for the “period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.” Employers with 50 or more employees must also provide unpaid, job protected leave under the federal Family and Medical Leave Act to eligible employees.
For decades, federal and NH law have prohibited pregnancy discrimination and required employers to treat pregnant employees with work limitations the same as non-pregnant employees with work limitations. These laws have been helpful for employees and for employers seeking to support and retain employees; however, they did not necessarily help the 70% of pregnant women in the U.S. (or 81% of pregnant women in NH) who continue working throughout their pregnancies, according to a 2022 report from the National Partnership for Women and Families.
Pregnant Workers Fairness Act (PWFA)
The Pregnant Workers Fairness Act (PWFA), enacted in June 2023, is a federal law that expands protections for pregnant workers by requiring employers with 15 or more employees to provide reasonable accommodations for employees at work. At its core, the PWFA requires employers to accommodate applicants and employees with known physical or mental limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation would cause the employer undue hardship.
Sounds simple enough. What’s the catch? The devil is in the details, including:
A limitation may be considered “known” to the employer, and require accommodation, when communicated to a supervisor, even if human resources or upper management does not know. Supervisor training on this topic, including when to notify HR, is imperative.
Limitations requiring accommodation do not have to be severe. For example, if a pregnant employee needs access to food, water or restrooms, the accommodation should be granted even if the employee is not disabled.
Employers must either grant the accommodation requested or engage in an interactive process with the employee to learn about their needs and discuss alternative accommodations that might be effective. An employer cannot dictate accommodation without using the interactive process.
An employer cannot place a pregnant employee on paid or unpaid leave if the employee is able to work with reasonable accommodation and wants to do so.
An employee is qualified for their job and eligible for accommodation even if they temporarily cannot perform the essential functions of their job if the inability can be reasonably accommodated and the employee will be able to perform again soon.
The Equal Employment Opportunity Commission
So, what is the role of the Equal Employment Opportunity Commission (EEOC) in this? The law only says so much. As the federal agency in charge of the PWFA, the EEOC will issue regulations to give guidance to employers and will also enforce the law. We are waiting for the EEOC’s final regulations.
The proposed regulations issued in August provided more questions than answers by taking an expansive view of the types of conditions covered by the law. For example, proposing that employers must accommodate birth control, menstruation and having, or choosing not to have, an abortion among other things seems broader than what the law intended.
Another proposal is to have the temporary period during which an employee cannot perform essential job functions extend 40 or more weeks. The federal government is still laboring over the final regulations which are overdue. Meanwhile, the law is in effect even though the regulations are not.
What Smaller Employers Need to Know
New Hampshire employers with six to 14 employees are not covered by the PWFA but are covered by state law against pregnancy discrimination that requires pregnant employees be treated the same as non-pregnant employees with temporary physical disabilities. For example, if an employer would accommodate an employee with lifting restrictions due to an off-duty sports injury, then the employer should accommodate the lifting or other restrictions of a pregnant employee.
The PUMP Act
Federal law requires employers of all sizes to provide reasonable breaks and space for an employee to express breast milk for up to one year following their child’s birth, unless doing so creates an undue hardship for an employer with fewer than 50 employees.
The lactation space must be private, be available when the employee needs it and be functional (such as having a chair and electrical outlet); it cannot be a bathroom.
New Hampshire’s lactation break law (RSA 275:78, et seq.) will become effective July 1, 2025, and will apply to employers with six or more employees. The NH law is broader than the federal law. For example, in NH, a reasonable break for lactation will mean approximately 30 minutes for each three hours worked; the space must be reasonable walking distance from the employee’s workspace, and the employer must adopt a policy and provide it to all employees.
Employers should not delay in ensuring their supervisory employees are trained, and their accommodation and lactation break policies are up to date.
Want to Learn More?
Review these resources for more information:
- PWFA Resources: www.eeoc.gov/wysk/what-you-should-know-about-
pregnant-workers-fairness-act - US DOL PUMP Act FAQs: www.dol.gov/agencies/whd/nursing-mothers/faq
- NHCHR Pregnancy FAQs: www.nh.gov/hrc/pregnancy/index.html
- NH Lactation Break Law: www.gencourt.state.nh.us/rsa/html/XXIII/275/
275-78.htm
Attorneys Andrea Chatfield and Jennifer Moeckel are both members of Sheehan Phinney’s Labor and Employment Law Group. For more information, visit sheehan.com.
Current Issue - April 2024