New Legislation Requires NH Employers to Make “Reasonable Accommodations” for Pregnant and Nursing Mothers

Among the 54 bills that Governor Sununu signed into law during the first week of August is House Bill 358, which is the final piece of what was Senate Bill 175 — a comprehensive bill to help improve maternal and infant health outcomes — and also known as New Hampshire’s MOMnibus package. The legislation has important implications for employers, who must now provide minimum workplace support for pregnant and nursing women. 

A MOMnibus is a legislative package spearheaded by the congressional Black Maternal Health Caucus. The package includes a comprehensive set of policy proposals to address the racism and inequities at the root of the Black maternal health crisis and improve maternal health outcomes. As with many initiatives targeting our most vulnerable and disenfranchised neighbors, MOMnibus legislation ultimately benefits everyone.  

In the words of Assistant Democratic Leader Becky Whitley (D-Hopkinton), the primary sponsor of Senate Bill 175, “The NH MOMnibus brings together the needs of moms, business owners, healthcare professionals, and more to help new moms get healthy and return to the workforce so they can continue to thrive.”

The Century Foundation recently released an interactive legislative tracker to help interested individuals monitor the progress of the federal Black Maternal Health Momnibus Act (the Momnibus). 

What does MOMnibus legislation accomplish? 

In New Hampshire, as in many other states, MOMnibus expands the covered Medicaid services available for pregnant women and extends the coverage to 12 months postpartum. Coverage includes preventative care, acute care, and mental health care.

The bill also establishes minimum workplace supports, requiring employers to provide nursing mothers with both sufficient break time and appropriate space for expressing milk during working hours.

House Bill 358 addresses several issues concerning the filing and adoption of administrative rules concerning the overpayment of unemployment compensation relative to nursing mothers. It also establishes minimum workplace supports for nursing mothers and requires all employers with six or more employees to provide them. Employers who violate any provision of this legislation “shall be subject to a one-time civil penalty pursuant to RSA 273:11-a.”

Federal legislation

New Hampshire’s MOMnibus legislation mirrors new federal legislation that became part of the $1.7 trillion federal spending bill signed by President Biden in early January. The Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act) were included as spending bill amendments. Proponents of the federal legislation said the measures clarified the rights of pregnant and nursing workers that were not adequately covered by existing laws. 

These new federal laws require a business with 15 or more employees to make “reasonable accommodations” for pregnant and nursing workers. The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations, including the ability to sit or drink water; receive closer parking; flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and activities that involve exposure to compounds not safe for pregnancy. Employers must provide reasonable accommodations unless they cause an “undue hardship” on the employer’s operations. An “undue hardship” is a significant difficulty or expense for the employer. 

Employer responsibilities 

All New Hampshire employers with more than six employees are advised to review the minimum workplace supports they are now expected to have in place for their employees who are nursing infants. These minimum requirements are summarized in the final section of House Bill 358. 

Employers are also encouraged to review the federal Pregnant Workers Fairness Act and PUMP for Nursing Mothers Act and how the Equal Employment Opportunity Commission (EEOC) plans to monitor compliance. Specifics are still an evolving discussion.  

On August 11, 2023, the EEOC posted a Notice of Proposed Rule Making (NPRM) for the Pregnant Workers Fairness Act in the Federal Register. A summary of the key provisions of the NPRM is also available. The comment period will last for 60 days. Anyone wishing to comment on the NPRM will have 60 days from publication to do so through www.regulations.gov — Docket Number 2023-17041. 

We’re here for you 

If you have any concerns about how this new state and federal legislation will impact your business — or questions about implementing new policies clearly and appropriately — don’t hesitate to contact Orr & Reno for assistance. 

About the authors: Steven L. Winer and Lindsay Nadeau

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