The Family Medical Leave Act (FMLA) was a watershed in American employment law when it granted twelve weeks of unpaid leave to qualifying workers to care for a new child, care for an ill family member, or recover from illness. This year, on the thirtieth anniversary of the FMLA, two laws will go into force which will expand worker protections for pregnant and nursing workers.
In December 2022, President Biden signed the Pregnant Workers Fairness Act (PWFA), which plugs a gap between the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). While the PDA prohibits discrimination against pregnant workers based on pregnancy, prior to the PWFA, employers were only obligated to make accommodations for a pregnant worker – such as avoiding heavy lifting or modifying no-food-or-drink policies – if the worker had a qualifying disability other than pregnancy itself, such as pelvic inflammation, pregnancy-related carpal tunnel syndrome, or severe forms of morning sickness. This is because the ADA, which requires employers to provide accommodations, excludes “pregnancy” from its definition of a qualifying disability. When the PWFA goes into effect on June 27, 2023, workers who work for an employer with 15 or more employees will be entitled to reasonable accommodations necessary because of pregnancy. This can include being excused from strenuous activities, receiving closer parking or more flexible hours, appropriately sized uniforms and safety gear, and taking leave or time off to recover from childbirth, among others.
Also in December, President Biden signed the Providing Urgent Maternal Protections (PUMP) for Nursing Mother Act, which expands the protections for breastfeeding parents that were enacted as part of the 2010 Affordable Care Act (ACA). The ACA mandated that an employer provide reasonable breaks and a private place to pump for a nursing worker, but only applies to workers who are entitled to overtime pay, thereby excluding millions of workers from its coverage. The PUMP Act extends protections for pumping to both hourly and salaried workers and allows workers expressing milk during working hours to count that time as hours worked – allowing breastfeeding workers greater flexibility in the workplace.
While these expanded protections for pregnant and breastfeeding workers are a fantastic development for workers nationwide, they do not help solve the central shortcoming of the FMLA – lack of paid family leave. A handful of states and the District of Columbia have addressed this flaw by passing their own paid leave laws. Under the DC Paid Family Leave Program, workers who earn up to $900 per week on average are entitled to take twelve weeks of leave and receive 90% of their average weekly wage if they:
- Have a baby or welcome a new child into their household;
- Experience or are diagnosed with a serious health condition;
- Have a family member who experienced or was diagnosed with a serious health condition; and/or
- Become pregnant.
The law also provides for two weeks for prenatal care. Workers who earn more than $900 per week are entitled to 90% of their average wage up to $900, plus 50% of wages above $900, up to a maximum of $1,049 per week. More DMV-area workers will soon enjoy paid leave: starting on January 1, 2025, Maryland residents will be entitled to paid leave under the Time to Care Act, which was passed by the Maryland legislature in April 2022.
Correia & Puth represents pregnant, nursing, and new parent workers confronting discrimination in employment. If you have concerns about your treatment by your employer, or have questions about your entitlement to benefits under the DC Paid Family Leave Program, please contact us today.
