What dermatology practices need to know about laws protecting pregnant and lactating employees

By Ben Tesdahl, JD, LLM, Jason Qu, JD, and Rob Portman, JD, MPP, September 1, 2024

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville PC in Washington, D.C. Portman is also outside general counsel for the AAD and AADA.

Title VII of the Civil Rights Act has long prohibited discrimination and harassment based on pregnancy, childbirth, or related medical conditions in any aspect of employment, including hiring, firing, pay, promotions, training, and more. However, two relatively new federal laws that went into effect in 2023 provide several enhanced workplace protections and accommodation requirements for covered employees who are either pregnant, postpartum, or pumping. Dermatology practices with pregnant or lactating employees may be subject to these new laws if the practice meets the minimum statutory size requirement. A brief summary of these two new laws follows.

Break time and facilities for employees to pump breast milk at work

Under the Fair Labor Standards Act (FLSA), as extended by the 2023 “Providing Urgent Maternal Protections for Nursing Mothers Act” (PUMP Act), most employees have the right to take reasonable break time to express breast milk for their nursing child. Specifically, for one year after the child’s birth, covered employees may take reasonable break time “each time such employee has need to express the milk.” An employer may not deny a covered employee a needed break to pump and must accommodate a nursing employee’s individual needs with regard to the timing, duration, and frequency of breaks. Essentially, employers cannot impose fixed, one-size-fits-all schedules or policies. Additionally, employees who telework are eligible to take pump breaks under the FLSA on the same basis as other employees.

Covered employees must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” As noted above, a bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk.

If the space set aside by the employer is not dedicated to the nursing employee’s use, it must be available when needed by the employee to meet the statutory requirement. A space temporarily created or converted into a space for expressing breast milk or made available when needed by the nursing employee is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.

Teleworkers must also be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.

The above rules apply to virtually all FLSA-covered employees, specifically: (1) employees who work for employers with at least two employees, if the employer also has an annual dollar volume of sales or business done of at least $500,000, or if the employer is a hospital, a business providing medical or nursing care for residents, a school or preschool, or a government agency; or (2) any individual employee whose work regularly involves them in transactions or interactions across state lines (interstate commerce), regardless of the type of employer they work for.

However, employers with fewer than 50 employees are not subject to the FLSA lactation break time and space requirements if compliance with the provision would impose an “undue hardship.” Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.

The FLSA has provisions prohibiting employers from taking adverse actions against employees who exercise their rights under the law, and those non-retaliation provisions and the damages that employees can seek in the event of retaliation also apply to the new PUMP Act rights. For example, if an employee were wrongly terminated for exercising her rights under the PUMP Act, damages might include unpaid wages, reinstatement, back and front pay, and liquidated damages (i.e., an extra dollar amount awarded where actual damages are difficult to prove).

Notably, employers of FLSA-covered employees must display a poster informing them of their FLSA rights, and that this poster must include the new PUMP Act rights. This caused the Department of Labor to update the agency’s template FLSA poster in 2023.

The Pregnant Workers Fairness Act (PWFA)

The PWFA requires employers to consider employee and job applicant accommodation requests related to pregnancy, childbirth, or related medical conditions in the same way they would consider requests for accommodation related to disabilities under the Americans with Disabilities Act (ADA). The law applies to any employer with 15 or more employees.

Among other things, the new law prohibits employers from placing an employee impacted by pregnancy, childbirth, or related medical conditions on a leave of absence — paid or unpaid — when a different reasonable accommodation option is available. While the PWFA went into effect in June 2023, the Equal Employment Opportunity Commission (EEOC) just recently issued final regulations to carry out the law, and those new regulations went into effect June 18, 2024. Under the PWFA and its final regulations, some examples of what might constitute a reasonable accommodation include the following:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;

• Changing food or drink policies to allow for a water bottle or food;

• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;

• Changing a uniform or dress code or providing safety equipment that fits;

• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;

• Telework;

• Temporary reassignment;

• Temporary suspension of one or more essential functions of a job;

• Leave for health care appointments;

• Light duty or help with lifting or other manual labor; or

• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Notably, an employer cannot mandate that an employee accepts a particular reasonable accommodation without going through an interactive process. The PWFA also prohibits an employer from retaliating against employees or job applicants based on their request for a reasonable accommodation under this law.

As in the case of the ADA, employers can deny reasonable accommodations requests under the PWFA if the requested accommodation would impose an “undue hardship” on their business operations. This requires showing that the accommodation would cause “significant difficulty or expense,” as determined in light of factors that include the size, type, and budget of the employer’s business or operation and the nature and cost of the accommodation.

The final rule adds several additional factors that may be considered when determining if the temporary suspension of an essential function causes an undue hardship. These additional factors include: consideration of the length of time that the employee will be unable to perform the essential function(s); whether there is work for the employee to accomplish; the nature of the essential function, including its frequency; whether the employer has provided other employees in similar positions who are unable to perform the essential function(s) of their positions with temporary suspensions of those functions and other duties; if necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.

The final rule also identifies a limited number of simple modifications that will, in most cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by a pregnant employee. These “predictable assessments” in the final rule include: (1) allowing an employee to carry or keep water near and drink, as needed; (2) allowing an employee to take additional restroom breaks, as needed; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (4) allowing an employee to take breaks to eat and drink, as needed.

Other considerations

Dermatology practices subject to these laws should consider updating their employee handbooks, reviewing and updating their internal policies regarding pregnant and lactating employees, determining what suitable space will be made available to employees who need to pump breast milk, and possibly adding some supervisor training on these new laws.

In addition to the federal laws outlined above, employers must also consider whether there are any state laws that provide different or greater protections for pregnant and nursing employees, in which case those state laws must be followed as well. Most states have some type of laws on the books that provide a variety of protections for pregnant or nursing employees, so dermatology practices will want to consult with legal counsel or find a suitable summary of applicable state laws.

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

Additional DermWorld Resources