The Department of Labor has recently issued guidance on the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act was signed into law on December 29, 2022, amending the Fair Labor Standards Act (FLSA), to extend the reasonable break time and space requirements for mothers who pump breast milk at work.
What is the PUMP Act and How Has it Changed the Law?
In 2010, the FLSA was first amended by the Patient Protection and Affordable Care Act, which added break time and lactation space requirements for employees who needed to pump breast milk at work. The introduction of the PUMP Act in 2022 expands coverage for as many as 9 million more employees, including FLSA-exempt employees, by broadening the reasonable break time and space requirements. The PUMP Act also expands the rights of aggrieved employees, creating a private right of action.
To assist employers and employees, the DOL released guidance explaining the new changes and advising interested parties on how to comply.
What Do Employers and Employees Need to Know?
Who is a Covered Employee?
As of December 2022, nearly all FLSA-covered employees now have the right to take a break to pump breast milk. Employees who are nursing a child may receive pump breaks for up to one year after the child’s birth.
The PUMP Act further extends the protections to nearly all employees covered by FLSA. Under previous law, only non-exempt employees were covered. In practice, employers cannot reduce an exempt employee’s salary for taking pump breaks.
Who is Exempt from Compliance?
The PUMP Act exempts employers with fewer than 50 employees if compliance with the break time and space requirements would impose an undue hardship. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.
Certain employees of airlines, railroads, and motorcoach carriers may also be exempt. Employers who work in these industries should consult with a lawyer, as compliance with FLSA and the PUMP Act may still be required.
Break Time Requirements
Under the FLSA and Pump Act, employers are required to provide nursing employees a “reasonable break time” each time the employee has a need to pump breast milk at work. The DOL further reminds employers that the duration and frequency of break times will vary on each employee’s needs and lactation setup.
Despite varying needs for employees, the guidance makes clear:
- Employers cannot deny a covered employee a break time to pump.
- Employers and employees may agree on a fixed nursing schedule, but the employer cannot force an employee to adhere to the schedule.
- If a schedule is set, the schedule may need to be adjusted over time to account for the employee’s change in needs.
- Employees who work remotely are eligible for pump breaks as if they are working on-site.
Compensation for Break Times
The PUMP Act does not require that employees be compensated for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.”
Despite this standard, if an employee is not completely relieved from her duties for the entirety of the break, the employee is still considered to be working and must be compensated for that time. Moreover, if an employer provides short breaks, which the DOL defines as “20 minutes or less,” or any other paid breaks to its employees, the employer must pay the employee for these breaks, even if an employee chooses to use that time to pump breast milk.
All covered employees must have access to a space to pump breast milk that is:
- Shielded from view
- Free from intrusion from coworkers or the public
- Available each time it is needed by an employee
- Not a bathroom
The DOL continued that employers must ensure the employee’s privacy, such as posting a sign for when the room is in use and ensuring the employee is shielded from view, including cameras, computers, or web conferencing platforms.
The space must also be functional for a nursing employee. The employer must provide a seat and a flat surface that the pumping system can rest on. Employees must also have access to a refrigerated location to store the breast milk, whether in a personal cooler, insulated food container, or refrigerator. Ideally, the space should provide the employee with electricity to use the pump system, as needed, and access to a sink to wash hands and any attachments or supplies.
While employers are given broad discretion to address space requirements, employers should consider the number of nursing employees and their schedules to determine what type of space, and how many, may be required. Spaces are not required to be permanent, so long as the space is readily available when an employee may need it.
What Happens if an Employer Does Not Comply?
Enforcement of the FLSA and PUMP Act will occur through employee reporting. Employees who feel they have not been provided reasonable break times and/or an appropriate space to pump under the FLSA may either file a complaint with the DOL Wage and Hour Division or file a private cause of action against an employer.
In a private cause of action, the employee can seek remedies available to them under the FLSA. The FLSA provides protection for any employee “discharged or in any other manner discriminated against” because such employee “filed a complaint or instituted or caused to be instituted any proceeding” regarding the pump at work protections. This includes discharging an employee or otherwise retaliating against an employee for engaging in a protected activity such as: making a complaint, requesting payment of wages, instituting, or engaging in any investigation, exercising their rights under the FLSA, or testifying at trial.
The PUMP Act does provide a safe harbor provision, requiring employees to give their employer notice that the employer is not in compliance. Upon notice, the FLSA allows the employer 10 days to come into compliance before the employee can commence an action for a violation. This requirement will not apply if the employer retaliates against the employee for requesting compliance, or if the employer tells the employee that it does not intend to comply.
This protection covers employees who complain either orally or in writing to the DOL. Most courts have also extended this protection to employees who complain internally or engage in internal investigations rather than to the DOL.
For additional information on the FLSA, PUMP Act, or assistance determining your rights or obligations, please contact Rob Gilmore (RSG@kjk.com; 216.736.7240) or another attorney within KJK’s Labor & Employment practice group.