PUMP Act Requirements and Protections for Nursing Mothers

Since 2010, the Fair Labor Standards Act (FLSA) has required that covered employers provide breaks to non-exempt employees who are nursing, so that they can express breast milk.  As of December 29, 2022, pursuant to the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”), these breaks must also be provided to exempt employees and meet certain privacy and space requirements. As of April 28, 2023, the remedies and damages available for violation of these laws were expanded.  Employers should train managers about both wage and hour and workplace environment requirements of the PUMP Act, and provide adequate time and space to nursing mothers.  

 Applicability

All employers covered by the FLSA are also subject to the PUMP Act, though an exception applies to employers with fewer than 50 employees, if they can show that compliance will “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.”  Employers should seek legal counsel before deciding whether the exception applies to them.

Virtually all employees covered by the FLSA—whether exempt or non-exempt from overtime provisions—are also protected by the PUMP Act.  The only exceptions are for certain employees of railroads and motorcoach carriers, as well as crewmembers for air carriers.

 Break Time Under the PUMP Act

The PUMP Act requires that covered employees be provided a reasonable break time: (1) during which to express breast milk for the employee’s nursing child; (2)  for up to one year after the child’s birth; and (3) each time the employee has a need to express milk.  As mentioned in our previous blog post, the Department of Labor (DOL) has issued guidance stating that “[t]he frequency and duration of the breaks that a nursing employee needs will vary depending on the individual situation.”

According to the U.S. Department of Health and Human Services (HHS), nursing mothers need to pump at work during the times they would feed their baby if they were at home.  The HHS advises that, “[a]s a general rule, in the first few months of life, babies need to breastfeed 8-12 times in 24 hours.”  Since a full-time employee generally spends about half of their waking time at work during workdays, a nursing employee may need to pump four to six times each day at work.  The HHS further notes that pumping can take about 15 minutes once a nursing mother is accustomed, though sometimes the process takes longer. 

The DOL has issued a fact sheet which includes an example of an employer who, to comply with the law, provides a nursing mother with four breaks a day, of 25 minutes each.  The DOL adds that the location of the space where breast milk is expressed can affect the duration of the break time, as can the time it takes for the employee to set up to pump.

Break Space Under the PUMP Act

Employers must also provide covered employees with a place to express breast milk that is:  (i) not a bathroom; (ii) shielded from the view of others; and (iii) free from intrusion by co-workers and the public.  The DOL fact sheet notes while this space need not be solely “dedicated to the nursing employee’s use, it must be available when needed by the employee.”  A separate DOL presentation provides that “the location must be functional as a space for pumping milk,” and that “employers should take into consideration the number of nursing employees and their work schedules to determine whether more than one space should be designated or created.”  The DOL indicates that, at least in some situations, installing a curtain or other screening protection will be legally sufficient (and that there would not be a significant expense in doing so that qualifies as an undue hardship).

The HHS also provides advice on the lactation space.  It notes that to be functional for expressing milk, the space should, at a minimum, have a chair and a flat surface (such as a desk) for pumping equipment.  The HHS offers examples of spaces that may be used as a lactation space (such as a conference room) and amenities that would ideally be included in the space (such as an electrical outlet and refrigerator for storage of the breast milk), among other things. 

The DOL guidance clarifies that this requirement applies even when the employee teleworks from home or another location, and notes that employers should ensure that any employer-provided or required video system (including a computer camera) does not observe employees while they pump breast milk.

Employers may not retaliate against employees in any way for asserting their rights under these laws, or for filing a complaint or action alleging a violation.

Compensation During Lactation Breaks

Federal law does not require that an employee be paid for time spent on lactation breaks, unless:  (1) the employee was not completely relieved from duty during the entirety of the break, such as by responding to work-related phone calls or emails during their break; (2) the employer provides certain other paid breaks, and the employee uses that time to express milk; or (3) the employee is exempt (for FLSA overtime purposes) and failure to pay would be an improper salary reduction.

Remedies and Enforcement

Effective April 28, 2023, remedies for violations of the break time and space requirements may include injunctive relief, employment, reinstatement, promotion, backpay (plus an equal amount in liquidated damages), compensatory damages, attorney’s fees, and punitive damages.  Most of these remedies were previously only available for violations of the anti-retaliation provisions of the law. 

Whenever a violation of the PUMP Act occurs, employees may immediately file a complaint with the DOL.  Employees now also have a private right of action.  When an employer violates either the break time or anti-retaliation provisions of the PUMP Act, an employee may immediately file a lawsuit in court.  However, before filing a lawsuit in court over an employer’s violation of the break space provision, an employee must first give notice to their employer of the violation and give the employer 10 days to come into compliance with the law.  As with other violations of the FLSA, the statute of limitations for filing a complaint or lawsuit is 2 years for non-willful violations and 3 years for willful violations.

Takeaways

·         Employers should review the HHS’s advice on how employers in a variety of industries (from retail to transportation) and environments (from office jobs to outdoor job sites) can comply with the PUMP Act’s break time and space requirements.

·         As we stated in our previous blog post, employers should consider issuing a policy that informs nursing employees that they have the right to pump breast milk in a place (other than a bathroom) that is free from observation. This policy should inform teleworking nursing employees that: (1) if they do not have such a place to pump breast milk, they should inform the employer and arrangements will be made; and (2) if they choose to pump breast milk in a place that can at times be observed by an employer-provided or required video system, including a computer camera, then they should ensure that such video system is covered, disabled, or otherwise unable to observe them while pumping.

·         Employers should maintain a procedure for employees to file internal complaints regarding perceived violations of the PUMP Act, and act on them quickly to minimize both the risk of litigation and the liability created by such violations.

·         To the extent an employer plans to not pay a non-exempt nursing employee during the time spent expressing breast milk, the employer should:  (1) check whether other paid breaks are provided that the nursing employee may use; and (2) notify nursing employees (and their managers) that they are not required or expected to perform any work while they are expressing breast milk.

·         Employers should be aware that these are the minimum Federal requirements, and that some states and localities have more expansive protections for lactating employees.

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This post is published for informational purposes only and does not constitute legal advice or create an attorney-client relationship.  No blog post should be used as a substitute for advice from a licensed attorney, and readers are always urged to seek legal counsel on legal questions concerning specific situations.