Editor’s note: This is the first in the second article in a series where we’ll ask Courtney Leyes and Emily Litzinger, employment lawyers at Fisher Phillips, employment law questions specific to the restaurant industry. The first, on hiring minors, can be found here.

We have several pregnant employees, and we’re wondering if there are workplace requirements that we should be aware of?

Yes! The Pregnant Workers Fairness Act (PWFA) was signed into law on December 29, 2022 and it requires covered employers to provide reasonable accommodations for employees with medical conditions related to pregnancy and childbirth.

And the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act was also recently passed and requires organizations to provide time and space for breastfeeding parents. 

What is the PWFA?

The PWFA prohibits employers who have 15 or more employees from discriminating against a “qualified employee,” by:

• Failing to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
• Requiring a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• Denying employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
• Requiring such employees to take paid or unpaid leave if another reasonable accommodation can be provided; and
• Taking adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

 

In other words, the PWFA requires employers to consider employee and applicant accommodation requests related to pregnancy, childbirth, or related medical conditions the same way it has considered requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). Additionally, the PWFA prohibits employers from placing a qualified employee on a leave of absence when a different reasonable accommodation option is available. Finally, the Act prohibits retaliation against employees for seeking or taking a reasonable accommodation related to their pregnancy, childbirth, or related medical condition.

What is the PUMP Act?

The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act requires organizations to provide time and space for breastfeeding parents. The Affordable Care Act of 2010 and the Fair Labor Standards Act already require employers to provide reasonable time to express breast milk and a place for pumping, other than the bathroom, that is shielded from view and private.

This prior pumping law did not consider all workers, as it excluded most salaried employees. But the PUMP Act extends these rights to all breastfeeding employees for the first year of the baby’s life. Additionally, time spent to express breastmilk must be considered hours worked if the employee also is working.

We have a small restaurant—what space should we use? And how can we find the time?

Many restaurants lack available private space for employees. Some solutions may be to use a manager’s office or storage areas as temporary and flexible lactation space. Portable divider screens create privacy in these shared or common areas. It is key to provide a space shielded from intrusion from the public.

Flexible scheduling can help restaurants manage a lactating employee’s need for breaks to express breastmilk. You can schedule lactation breaks during times outside of the rush period. If a lactation break is necessary during the rush, however, a manager or shift leader can fill in for the employee. 

Some businesses may even allow employees to go home to breastfeed in between busy times or during double shift. Flexibility is necessary, and your supervisors should be aware of the need for lactation breaks when there is unscheduled overtime or extended duty hours.

Overall, what can and should QSRs do?

While the PWFA and PUMP Act are significant expansions of employees’ rights under federal employment law, many states and cities already have some sort of expanded pregnancy accommodation law. In fact, 30 states and five cities require certain employers to provide some form of accommodations (including specific requirements for lactating employees) to pregnant employees.

If you haven’t already, you should look to expanding your accommodations review process to include requests related to pregnancy, childbirth, and related medical conditions. (And you should partner with your employment lawyer to assist in this process). You also may want to expand your mandatory HR trainings to include a discussion of these new laws so that your managers—and employees—understand their rights and obligations under the law. Managers also should learn to recognize when employees are making such requests and how to handle them.

And you should start considering how you will configure a space for any breastfeeding employees, and confer with legal counsel, if necessary.

Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.