Kentucky employers and employees alike should know that new federal legislation increases job protections for lactating employees. Federal law governs nationwide and any greater protection under Kentucky law would still apply.
2022 PUMP Act and Kentucky protections
Passed on a bipartisan basis, the Providing Urgent Maternal Protections (PUMP) For Nursing Mothers Act amended federal law that already required most employers to provide reasonable break time and a private, clean area that is not a bathroom for pumping milk for the child’s first year of life.
The PUMP Act governs almost all employers of all sizes. For those with fewer than 50 employees, a showing of undue hardship would exempt them. Similar Kentucky law only applies to employers with 15 or more employees.
Under Kentucky civil rights law, a related medical condition to pregnancy includes “lactation or the need to express breast milk for a nursing child” Reasonable accommodations for pumping may include “frequent or longer breaks … and private space that is not a bathroom for expressing breast milk.” Failure to accommodate for lactation is an unlawful employment practice unless the employer can show undue hardship.
Federal law previously excluded certain jobs that the PUMP Act now covers such as teachers, taxi and truck drivers, registered nurses, agricultural workers, home-care workers, salaried workers and others. About 9 million more people have gained the right to receive lactation accommodation, reports Worklife Law. The PUMP act is already in effect for this expansion of coverage.
(Pilots and flight attendants do not have PUMP Act protections and for certain rail and motorcoach workers the effective date is in three years.)
As of April 28, 2023, the Act will create the right for an employee to file a lawsuit against their employer for money damages for failing to provide required space and time for lactation. Other legal remedies were and are available, however.
Pregnant Workers Fairness Act
The PWFA is another major, new federal law that takes effect on June 27, 2023. Advocates are lauding it as important civil rights, anti-discrimination legislation because it establishes the right to reasonable accommodation automatically for pregnancy and related conditions like lactation. No longer will the pregnant or lactating parent need to prove a disability or that they are like someone else who gets an accommodation for a disability that is not a pregnancy-related condition.
The PWFA applies to private employers with 15 or more employees and to certain government employees unless the employer can show undue hardship.
This is an overview of a complex topic involving comparison of federal and Kentucky laws to determine what an employer’s responsibilities are to nursing employees. Federal law pre-empts state law, so for lactation provisions, since the PUMP Act covers almost all employers and Kentucky covers those with at least 15 employees, the broader federal coverage will expand responsibilities to smaller employers.
Legal clarification may evolve for some provisions such as through court decisions. For example, the PUMP Act says lactation protections apply for the first year of life and Kentucky says it applies when a child is nursing. So, when the federal protection ends at the child’s first birthday, if they are still nursing does the Kentucky protection continue for employers with 15 or more employees?
These examples show why it is important for employers to confer with experienced employment lawyers to understand their responsibilities. OF course, a lactating employee concerned about lactation accommodation should speak with an attorney about their rights.