Evolving Rights for Pregnant and Nursing Employees

Jun 27, 2023   Print PDF

By Valerie A. Walker | Related Practice: Employment

Recent updates to Seattle, Washington, and federal laws expand workplace rights and entitlements associated with pregnancy and nursing. For your workplace, these laws may add a protected class, extend Paid Family and Medical Leave, or affirm an employee’s right to express breast milk or secure a reasonable accommodation. In describing these updates, this brief refers to perinatal and infant loss.

Seattle—Anti-discrimination Update: After Dobbs v. Jackson Women’s Health Organization eliminated federal protections for reproductive rights, the City of Seattle added “actual, potential, perceived, or alleged pregnancy outcomes” as a protected class. SMC 14.04.030 (update effective September 2022). Examples of “pregnancy outcomes” include live birth, stillbirth, miscarriage, abortion, morning sickness, pregnant-related anemia, preeclampsia, and perinatal depression. It is illegal in Seattle to discriminate against someone based on these outcomes, and the Office for Civil Rights has the power to investigate alleged discrimination accordingly.

State—Paid Family and Medical Leave Act Update: Washington state enhanced Paid Family and Medical Leave Act (PFMLA) benefits for pregnant workers, which took effect in June 2022.

Eligible Washington employees may now take up to seven days of PFMLA leave after the loss of a child if the employee did qualify or would have qualified either for medical leave for pregnancy or childbirth recovery or for family leave to bond with a new child. See RCW 50A.05.010. For example, a miscarriage is a covered reason for PFMLA leave.

In addition, the PFMLA now includes a definition for “postnatal”: the first six weeks after birth. See RCW 50A.05.010(19). PFMLA leave taken in this “postnatal” period does not require certification of a serious health condition, decreasing the documentation burden for persons giving birth. See RCW 50A.15.020(4)(b).

By incorporating these updates into policies and procedures, Washington employers can ensure that they provide appropriate PFMLA notice and guidance to eligible employees.

Federal—Providing Urgent Maternal Protections for Nursing Mothers (PUMP Act): Under new legislation, the Fair Labor Standards Act (FLSA) is catching up with Washington’s expansive breastfeeding protections. See H.R. 2617, Division KK—Pump for Nursing Mothers Act (amending 29 U.S.C. § 201 et seq.).  Previously, the FLSA required employers to provide only certain non-exempt employees with reasonable break time to express breast milk, and a private place to express milk other than a bathroom. With the PUMP Act, most employers covered by the FLSA must comply with the break-time and place-for-expression requirements for all employees. The Act does include exceptions or special rules related to small businesses (less than 50 employees) that can demonstrate undue hardship, air carriers, rail carriers, and motorcoach services operators. The PUMP Act also provides that if non-exempt workers are not completely relieved of their duties for the entirety of the break period, they must be paid for their time. Workers have a private right of action to recover monetary damages for violations of federal law.

The FLSA protections discussed above apply for up to one year after childbirth. Meanwhile, Washington state employees working for employers with 15 or more employees have already been benefitting from similar state-specific protections that apply for two years after childbirth, as well as from a right to file a lawsuit for monetary remedies under state law. See RCW 43.10.005. Consequently, the PUMP Act does not add additional requirements for most Washington employers.

More information on this topic is available here: Washington Expands Workplace Rights for Pumping Breast Milk | Home | Washington Law Firm | Stokes Lawrence

Federal—Pregnant Workers Fairness Act (PWFA): Starting June 27, 2023, covered employers must provide reasonable accommodations for employees with physical or mental conditions related to pregnancy or childbirth, unless the accommodation would be an undue hardship for the employer. Covered entities include employers with 15 or more employees and government employers. Prior to the passage of the PWFA, protections were more limited; pregnant employees had the right to reasonable accommodation under the Americans with Disabilities Act only if they had a disability, and pregnant employees had the right under the Pregnancy Discrimination Act to accommodations if non-pregnant employees with a similar ability or inability to work received accommodations.

Employees may enforce their PWFA rights through administrative remedies with the Equal Employment Opportunity Commission, after which they have private right of action against their employer.  

Washington employees already enjoyed these pregnancy accommodation rights, so Washington employers do not have new obligations under the PWFA. Washington state employees working for employers with 15 or more employees already have a state-based right to reasonable accommodation for pregnancy and pregnancy-related conditions, along with the right to file a lawsuit for monetary remedies under state law. See RCW 43.10.005.

Contact any member of the Stokes Lawrence employment group with questions or assistance with compliance with the above-referenced laws.