A Closer Look at New Workplace Protections for Pregnant and Pumping Employees in Minnesota

By Sara Jane Baldwin

The years 2021-2023 saw significant changes and improvements to workplace protections for pregnant and pumping employees. This was the case at both the state and federal level, with Minnesota continuing to provide stronger, more robust protections for workers. Despite this progress, there is still work to do. And while improving legislation is a great first step, we all know that statutes do not interpret or enforce themselves. That is why advocacy and education campaigns targeted at both employers and employees are vital in truly advancing protections for employees.

When it comes to laws protecting pregnant and pumping employees, there’s a veritable alphabet soup of acronyms. This article will focus on four: WESA, MPLA, PWFA, and PUMP. Complexities aside, what’s important to know is that in Minnesota, workers must be accommodated if they are pregnant or nursing and cannot lose pay, or their jobs, for taking necessary breaks. 

The Minnesota legislature passed the Women’s Economic Security Act (WESA) in 2014, and amendments in 2021 and 2023 strengthened protections for pregnant and pumping workers. One of the most notable amendments, perhaps, from the 2023 session is that the definition of employer now includes any employer with “one or more employees.”¹ That’s right – ALL employers, regardless of size, must now comply with the “Nursing Mothers, Lactating Employees, and Pregnancy Accommodations”² (no acronym!) and “Parenting Leave and Accommodations”³ (MPLA) provisions of WESA. Furthermore, there is no longer a required term of service before an employee is eligible to request unpaid time off for a pregnancy, birth, or adoption.⁴ Employees must be granted a maximum of 12 weeks of leave regardless of how long they’ve worked for the employer. This contrasts with federal Family and Medical Leave Act (FMLA) protections, which require employees to have worked for their employer for at least 12 months and at least 1,250 hours before becoming eligible for unpaid leave.

The 2023 amendments to WESA clarified and strengthened its provisions regarding “Nursing Mothers, Lactating Employees, and Pregnancy Accommodations.”⁵ Notably, the legislature removed language that limited pumping breaks to the 12 months following the birth of the child. ⁶ Now, as long as the child is consuming the employee’s breast milk, the employee must be given reasonable breaks to pump. Additionally, while those breaks “may” run concurrently with other break times provided to an employee, they no longer “must, if possible” run concurrently.⁷ The legislature also removed an exception to its pumping break requirements, which stated that “an employer is not required to provide break times under this section if to do so would unduly disrupt the operations of the employer,” recognizing that, as nursing parents have always known, the milk comes – and must be expressed – regardless of whether it impacts an employer’s bottom line.⁸ Additional amendments to this section include providing reasonable accommodation for longer and more frequent breaks and temporary leaves of absence, and modifications in work schedules or job assignments. Additionally, the legislature enhanced the anti-retaliation provision⁹ and added a notice provision¹⁰ to further protect and empower pregnant and nursing employees. 

State law protections in Minnesota dovetail with two new federal laws enacted in 2023 to protect pregnant and pumping workers. These are the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections (PUMP) Act. It is important to note that these protections do not replace other federal, state, or local laws that provide more or stronger protections. And, as is often the case, Minnesota provides stronger protections than federal law. Still, it is noteworthy that federal protections also seem to be inching towards acknowledging the mountains of data showing the benefits of supporting pregnant and pumping employees in the workplace.¹¹

The PWFA requires employers to provide “reasonable accommodations” to a worker’s “known limitations related to . . . pregnancy, childbirth, or related medical conditions” unless it will cause the employer an “undue hardship.”¹² This law applies to employers in the private and public sector with at least 15 employees, congress, federal agencies, employment agencies, and labor organizations.¹³ Notably, this “undue hardship” exception is a stark difference between the PWFA and WESA; in Minnesota, there is no longer any exception to providing the statutorily required accommodations. However, if a Minnesota employer makes reasonable efforts to provide an appropriate lactation space, they will be held harmless; and there has not yet been judicial interpretation or definition of “reasonable effort.”¹⁴ The PWFA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).¹⁵ 

The PUMP Act falls under the Federal Labor Standards Act (FLSA) and is enforced by the U.S. Department of Labor.¹⁶ This Act requires employers to provide reasonable break times to express milk and a proper place to do so. ¹⁷ Both PUMP and WESA require that this pumping place not be a bathroom and must be shielded from view and free from intrusion. Under the PUMP Act, these accommodations must be provided for one year after the child’s birth.¹⁸ Again, the recent WESA amendments eliminated this limitation. Also, under PUMP, employers with fewer than 50 employees are not subject to FLSA break time and space requirements if it would impose an undue hardship.¹⁹ Notably, under the FLSA, when an employee takes a break to express milk they must be completely relieved of their duties or otherwise be paid for the breaktime.²⁰ Again, in Minnesota, employers cannot reduce pay for pumping breaks. 

Because these are new laws and amendments, significant judicial interpretation of language such as “reasonable,” “best efforts,” “undue hardship” and the like has not yet occurred. For that reason, it’s important to educate employees and encourage them to speak up, and to seek legal representation if their employer is either unaware of these changes and additions or is unwilling to comply. Minnesotans, however, also have two relatively simple ways to report violations that can be handled pro se. The MPLA provides a quick and easy method to report non-compliant employers to the Minnesota Department of Labor and Industry (DOLI). Once a violation has been reported, the statute requires that the division “contact the employer within two business days and investigate the complaint within ten days of receipt of the complaint.”²¹ In addition to this remarkably fast procedure, workers alleging discrimination can file a complaint with the Minnesota Department of Human Rights (MDHR). The Minnesota Human Rights Act (MHRA) prohibits discrimination based on the protected class of sex, and the definition of sex includes “pregnancy, childbirth, and disabilities related to pregnancy or childbirth.”²² The MDHR requires completion of a simple, online form to initiate an investigation into claims of discrimination, which can be done with or without legal representation. The MDHR also provides free mediation services. Another way to challenge discrimination is under Title VII. The Pregnancy Discrimination Act (PDA) prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions” and a charge of discrimination can be filed with the EEOC. ²³ 

It is perhaps most important that both employers and employees are informed and educated about these additions and amendments. Statutory enactment and revision must be followed by both education and enforcement if these laws are to have their intended impact of protecting pregnant and pumping workers. 

Sara Jane Baldwin is a senior staff attorney at Gender Justice in St. Paul. She previously worked as a Hennepin Public Defender and as an Assistant City Attorney in the Civil Division for the City of Duluth. Sara Jane lives in Duluth, MN and is a proud graduate of Macalester College and Georgetown Law. 

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