The new protections were originally part of two separate bills: the Pregnant Workers Fairness Act (“PWFA”), which added protections for pregnant workers, and the Protections for Nursing Mothers Act (or “PUMP Act”), which added protections for nursing mothers.  But, after failing to pass as standalone bills, portions of the bills were added as amendments to the Consolidated Appropriations Act of 2023 and have been codified into law.

New Federal Protections for Pregnant Workers

As set forth in the Consolidated Appropriations Act of 2023, the PWFA provides that the following conduct by a covered employer constitutes “an unlawful employment practice”:

1. 1. not mak[ing] reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
   2. requir[ing] a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in [section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111)];
   3. deny[ing] employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee;
   4. requir[ing] a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the qualified employee; or
   5. tak[ing] adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

Covered employers include those employing 15 or more employees.  The PWFA incorporates many of the definitions from the ADA, including the “interactive process,” “undue hardship,” and “reasonable accommodation.”  However, the definition of “qualified employee” under the PWFA is defined to mean:

[A]n employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—

(A) any inability to perform an essential function is for a temporary period;

(B) the essential function could be performed in the near future; and

(C) the inability to perform the essential function can be reasonably accommodated.

The PWFA also includes discrimination and retaliation protections.

The PWFA will go into effect 180 days after enactment (i.e., June 27, 2023), and the EEOC must issue guidance no later than 1 year after the PWFA’s enactment.  Congress specifically instructed the EEOC to provide “examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.”

For employers in Minnesota, the requirements of the PWFA will not be new.  Remember, in Minnesota, employers with 15 or more employees are already required to provide “reasonable accommodations to an employee for health conditions related to pregnancy or childbirth upon request, with the advice of a licensed health care provider or certified doula, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business.”  Minn. Stat. § 181.939, subd. 2.  Minnesota law also requires covered employers to engage in the interactive process and provides that reasonable accommodations may include, but are not limited to, “temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting.”

Modified Federal Protections for Nursing Mothers

The Consolidated Appropriations Act of 2023 also included portions of the PUMP Act, which modifies (and somewhat expands) federal protections for nursing mothers.  Importantly, though, the modifications are not groundbreaking and, like the pregnancy accommodations, are not unlike existing protections under Minnesota law.

Specifically, the Consolidated Appropriations Act of 2023 removes the existing statutory language in 29 U.S.C. § 207(r) and inserts the following language in 29 U.S.C. § 218c:

(a)           IN GENERAL.—An employer shall provide—

(1) a reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and

(2) 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.

(b)          COMPENSATION.—

(1) IN GENERAL.—Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance.

(2) RELIEF FROM DUTIES.—Break time provided under subsection (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.

(c)     EXEMPTION FOR SMALL EMPLOYERS.—An employer that employs less than 50 employees shall not be subject to the requirements of this section, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Like the old federal statute, “reasonable break time” is required only during the first year after the child’s birth.  The law also makes clear that it does not preempt state or local laws that offer employees great protection.  This portion of the Consolidated Appropriations Act of 2023 was effective on December 29, 2022.

Again, these protections are nothing new for employers in Minnesota.  Specifically, Minn. Stat. § 181.939, subd. 1 provides that all employers with 1 or more employees must “provide reasonable break times each day to an employee who needs to express breast milk for her infant child during the twelve months following the birth of the child.”  The law makes clear that, “if possible,” the break times must “run concurrently with any break times already provided to the employee.”  Minnesota law also provides that “[a]n employer shall not reduce an employee’s compensation for time used for the purpose of expressing milk.”  Under Minnesota law, the location offered by the employer should also include access to an electrical outlet: “The employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express milk in privacy.”

Bottom Line

As you can see, the Consolidated Appropriations Act of 2023 includes new federal protections for pregnant women and nursing mothers.  However, these new requirements are similar to existing requirements in Minnesota.  Thus, employers are reminded that these federal protections are in addition to – and not in lieu of – state and local laws that provide greater protections.

We will continue to monitor this issue as it develops.

Editor’s Note: A prior version of this post mistakenly referenced that nursing mother breaks were required for 2 years after the birth of the child.  

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Hennepin County appealed the court’s decision and, in June 2020, the Minnesota Supreme Court agreed to hear the case.  However, as a result of 2021 legislative changes, the Minnesota Supreme Court reversed course and has dismissed the appeal.

Legislature Clarifies and Expands WESA Accommodation Obligation

As we reported last week, as part of the 2021 Special Session, the Minnesota Legislature passed an omnibus bill (S.F. No. 9) clarifying and expanding the WESA pregnancy accommodations by moving the legislative text from the MPLA (Minn. Stat. § 181.9414) to a new subdivision under Minnesota’s nursing mothers statute (Minn. Stat. § 181.939).  As we noted, the move removes any doubt as to whether the restrictive definition of “employee” under the MPLA applies to a pregnant employee requesting any pregnancy-related accommodation (i.e., “leave-related” or “non-leave related”).  It does not.

It should be noted that, as part of the bill, the Legislature added a definition of “employer” to the WESA accommodation statute, which requires that the employer have 15 or more employees.  The 15-employee threshold aligns the WESA accommodation obligation with the disability accommodation obligation under the Minnesota Human Rights Act (MHRA).  It should also be noted, though, that the 15-employee threshold does not apply to the nursing mothers portion of the amended statute (Minn. Stat. § 181.939, subd. 1).  Thus, the requirement to provide breaks to nursing mothers for the first year following birth of a child appears to apply to all employers.

Remember, the amendments are effective January 1, 2022.

Minnesota Supreme Court Declines Review

Despite initially granting review, the Minnesota Supreme Court concluded that the 2021 legislative amendments “significantly limit the impact of a decision by the court in this case.”  As a result, the Court reversed course and decided not to disturb the Minnesota Court of Appeals’ decision in Hinrichs-Cady.

Bottom Line

The 2021 amendments to the nursing mothers statute (Minn. Stat. § 181.939), which now include the WESA pregnancy accommodations, broaden the protections for pregnant and nursing mothers.  Both provisions apply to all “employees,” and only the WESA pregnancy accommodations are limited to employers with 15 or more employees.

Although the changes do not go into effect until January 1, 2022, given the Minnesota Supreme Court decided not to disturb the court’s decision in Hinrichs-Cady, employers with 15 or more employees would be well-served to immediately apply the WESA pregnancy accommodations (i.e., “leave-related” or “non-leave related”) to all employees.

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This was highlighted in a recent case where the Minnesota Court of Appeals ruled that the existing requirement that workers had to be employed for a year before seeking a parental leave did not apply to pregnant employees seeking on-the-job accommodations.

Hennepin County hired Whitney Hinrichs-Cady as a social worker in September 2016. She was pregnant at the time of her hire. Her position required visits to children’s homes to investigate abuse and neglect allegations. During these visits she was sometimes exposed to unsafe conditions such as cigarette and marijuana smoke and other drug use. After fainting during an in-home visit due to an iron deficiency, Hinrichs-Cady’s doctor issued her a list of job restrictions for the remaining seven weeks of her pregnancy which included not working for more than an hour without rest, lifting and driving restrictions, and not being exposed to unhealthy or unsafe environments.

Hinrichs-Cady’s direct supervisor was dismissive of her doctor’s restrictions and required her to continue performing her job duties as usual until a formal decision on the requested accommodations was made. Subsequently, Hinrichs-Cady’s requested accommodations were denied and she was placed on unrequested leave which was unpaid in February 2017. She then received an employment termination letter the day she returned to work after giving birth in June 2017.

Leave v. Accommodation

Hinrichs-Cady sued the County on various counts, one of them for violation of the 2014 Pregnancy and Parenting Leave Act (PPLA) which added a duty to accommodate pregnant employees to a group of Minnesota laws addressing the need to offer such employees a parenting leave of absence.  However, the trial court dismissed the claim, finding that since the statute defines a protected employee to be one who has worked for the employer for at least 12 months, the fact that Hinrichs-Cady was terminated after just 9 months meant that she was not protected under the law. Hinrichs-Cady appealed to the Minnesota Court of Appeals.

The Appeals Court reversed the dismissal of Hinrichs-Cady’s claims, ruling that the requirement that she be employed for at least 12 months did not apply to her request for pregnancy accommodations. The Court explained that the 12-month requirement previously applied to a statutory scheme that only addressed requests for leave, and that the definition section states that it applies only to “an employer from whom leave is requested”(emphasis added).

The Court of Appeals reasoned that when the accommodation language was added, the legislature understood the distinction between requests for non-leave accommodations and leaves, and by leaving the language as they did, they presumably intended to apply the 12-month requirement only to requests for leave.  As a result, pregnant employees with less than12 months of tenure may still seek non-leave accommodations under the PPLA.

Bottom Line

Even when the facts of a case seem straightforward, the patchwork nature of Minnesota’s ever-evolving employment statutes requires nuanced statutory interpretation and analysis. We all know that there are two sides to every argument, and a lawyer willing to argue each side.

What we know for certain is that unless this case is reversed again, pregnant employees in Minnesota do not have to have to be employed for a year before seeking accommodations.

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It may seem surprising in this day and age but many employers still offer the mother more “bonding time” after the birth or adoption of a child than they offer to the father.  This is sometimes done by explicitly designating unequal leave entitlements based on gender.  In other cases, companies differentiate between a “primary” and “secondary” caregiver with the assumption (either stated or implied) that the woman will assume the primary role.

Men Are Parents Too

In the JPMorgan Chase case, employee Derek Rotando applied for the company’s 16-week paid parenting leave so that he could bond with his new son and share initial childcare responsibilities with his wife.  He was told, however, that in most cases, only the mother gets the 16-week leave.  Unless he could show that his wife (a school teacher) had returned to work or was medically incapable of caring for the baby, he would only be able to take 2 weeks of paid leave.

Rotando filed a sex discrimination charge with the EEOC and then participated in a class action lawsuit on behalf of all male JPMorgan Chase employees who were denied access to the full leave.  Following the settlement of the lawsuit, JPMorgan Chase revised their policy to offer the 16-week paid leave to either gender simply upon the employee’s self-designation as the primary caregiver.  Non-primary caregivers now receive a six-week paid leave.

Family (Leave) Planning

In their 2015 Enforcement Guidance on pregnancy discrimination, the EEOC reminded employers to distinguish between leave necessitated by pregnancy, childbirth and any related medical issues versus leave desired for bonding or parenting purposes.  The former obviously may be limited only to females but the latter should be provided in equal amounts and under equal circumstances without regard to gender. While EEOC pronouncements like this do not have the actual force of law, they do represent the position that the EEOC will take when charges are filed, and they are given deference in the courts in many cases.

The EEOC has indicated that this will be an area of substantial enforcement focus for the agency.  Accordingly, employers should examine their leave policies (variously called “Maternity Leave”, Parenting Leave”, Family Leave” and so on) to distinguish appropriately between benefits relating to the medical and disability-related aspects of pregnancy and childbirth, and those relating to parenting leave for the period of time that both parents desire for bonding and childcare purposes

Avoiding gender-based terminology and those phrases that imply differentiation (e.g. “primary” v. secondary”) will help avoid confusion and inference of unequal treatment.  The policies should encourage all employees to visit with and ask questions of Human Resources, Benefits Administrators or other employer personnel who oversee the leave program.

Bottom Line

Employers will stay on the correct side of the law in this area if they simply remember that pregnancy is generally viewed as a medical issue and as such is within the exclusive province of the female employee.  Parenting leave is an employee benefit matter and therefore must be administered on a non-discriminatory basis.

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Instead, pregnancy-based discrimination requires only a showing that the employer’s action was motivated by the pregnancy.

Not Expecting Job Offer To Be Withdrawn

Family Orthodontics, P.A., a small clinic, offered Nicole LaPoint a job as an orthodontic assistant. After the offer was extended, LaPoint told the practitioner that she was pregnant, and they discussed the amount of maternity leave that would be available. LaPoint said she wanted twelve weeks of leave, but Family Orthodontics had a policy of allowing no more than six weeks (with only nine employees, federal and state leave laws would not apply here).

LaPoint offered to compromise at ten weeks but the employer ultimately rescinded the job offer, indicating they were concerned that LaPoint failed to mention her pregnancy during the interview and brought it up only after a job offer was extended.  They said they were concerned about handling such a long leave and ended up hiring a different applicant who wasn’t pregnant.

LaPoint sued for sex discrimination under the Minnesota Human Rights Act but the trial court ruled in favor of Family Orthodontics, finding that they did not demonstrate any actual hostility or animus toward LaPoint because of her pregnancy.  Instead, they were just genuinely concerned about the impact of a long maternity leave on their business.

LaPoint appealed to the Minnesota Court of Appeals, which reversed the district court’s decision because they found a “specific link” between LaPoint’s pregnancy and the clinic’s decision not to hire her. Family Orthodontics then appealed to the Minnesota Supreme Court.

Supreme Court Delivers Proper Legal Analysis

The Supreme Court ruled that the trial court applied the wrong legal analysis in dismissing the case originally, and that the Appeals Court did not appear to correct that error when issuing their reversal.  Therefore, they ordered the entire case remanded back to the trial court for a decision using the proper legal standards.

The Supreme Court zeroed in on the trial court’s assertion that the claim of pregnancy-based discrimination was unsubstantiated because the employer lacked any anger or hostility about the pregnancy. They explained that “a finding of animus, in the sense of dislike or hostility, is not necessary for a forbidden criteria to ‘actually motivate’ an employer’s decision.” As such, all LaPoint had to do was establish that her pregnancy “actually motivated” Family Orthodontics’ decision to rescind the job offer.  While proof of animus against her may be relevant to the question of motivation, it is not a required element of a sex discrimination claim.

The matter was therefore remanded back to the trial court for further proceedings.  This is where the true motivation behind the employer’s admission that she was annoyed over LaPoint failure to divulge her pregnancy in the pre-employment process will be borne out.

Bottom Line

There certainly are times when employers might make an innocent remark or a simple mistake that does not reflect actual hostility toward pregnancy (or some other protected class) but might sill belie an unlawful motive.  Under the “actual motivation” standard that the Supreme Court announced in this case, however, employers should redouble their efforts to limit those statements as much as humanly possible.

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Nicole LaPoint applied to work as an assistant to the doctor who owned and operated the orthodontic clinic. During her initial job interview, neither Ms. LaPoint nor the doctor raised the topic of pregnancy. After the interview went well, the doctor called and left Ms. LaPoint a voicemail offering her the job. However, when Ms. LaPoint returned the doctor’s call to accept the offer, she disclosed that she was pregnant and due to deliver in the late Fall.

BIRTH OF A BAD DECISION

In response to this news, the doctor congratulated Ms. LaPoint on her pregnancy and asked about her maternity leave plans. When Ms. LaPoint mentioned that she had taken twelve weeks of leave when her first child was born, the doctor expressed doubt that her orthodontic practice could handle the disruption of a twelve-week leave. She then explained that the clinic’s maternity leave policy was limited to six weeks (which is permissible if the employer is exempt from the Minnesota Parenting Leave Act for having fewer than 21 employees).

The next morning, the doctor left Ms. LaPoint a voicemail indicating that the clinic was “not going to offer [Ms. LaPoint] the job just yet” because of two concerns: First, Ms. LaPoint’s failure to disclose her pregnancy during the job interview. Second, the length of Ms. LaPoint’s desired maternity leave could disrupt the practice of such a small clinic.

Thereafter, Ms. LaPoint e-mailed the doctor several times attempting to provide reassurance that she intended to return to work after the birth of her child, and advising that she would consider a shorter leave. However, Ms. LaPoint did not receive any response to her e-mails, and the clinic eventually offered the job to another candidate who was not pregnant.

Ms. LaPoint sued Family Orthodontics, claiming that the two reasons the clinic provided for rescinding her job offer constituted pregnancy discrimination in violation of the Minnesota Human Rights Act. The trial judge initially sided with the employer by ruling that Family Orthodontics’ overriding concern that Ms. LaPoint’s maternity leave would disrupt the clinic was not a form of discrimination based upon sex or pregnancy.

EMPLOYER SHOULD HAVE BEEN EXPECTING THIS RULING

Unfortunately for the employer, the Minnesota Court of Appeals disagreed, finding that the reasons Family Orthodontics provided for rescinding the job offer were direct evidence of discrimination as a matter of law. Noting that the Minnesota Human Rights Act expressly prohibits an employer from requesting or requiring a job applicant to “furnish information that pertains to . . . sex,” the Court of Appeals concluded that it was illegal for Family Orthodontics to rescind its job offer for failure to disclose something they had no right to ask about in the first place.

The appellate court also found fault with the employer’s second reason for rescinding the job, explaining that the employer’s concern about the length of Ms. LaPoint’s desired maternity leave was “very closely related” to her pregnancy.” The Court found it particularly troubling that Family Orthodontics did not offer Ms. LaPoint the job contingent upon a leave no longer than six weeks (which was the amount of leave allowed under the clinic’s existing policy), even though Ms. LaPoint had stated that she would consider taking a leave shorter than the 12 weeks she desired.

Since neither of the employer’s reasons for rescinding the job offer passed muster, the court reversed the trial court and decided the case in favor of Ms. LaPoint. The case was then returned ot the trial court a determination of damages, which may include a monetary award to Ms. LaPoint for her prospective lost wages, emotional distress, and/or attorneys’ fees.

BOTTOM LINE

This case serves as a good reminder for Minnesota employers that it is unlawful to make employment decisions based upon the failure to divulge information that cannot be asked about in a pre-employment setting.  In addition, this case shows that an employer may still be found to have engaged in discrimination for acting on concerns that relate to an applicant’s protected status, even if the employer’s actions are arguably not directly because of the applicant’s protected status, such as was found to be true here with respect to the employer’s concerns over the applicant’s desired length of maternity leave.

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