The Providing Urgent Maternal Protections (“PUMP”) Act became effective December 29, 2022. This law is an amendment to the Fair Labor and Standards Act (“FLSA”) and expands protections afforded to nursing mothers in the workplace.
What does the PUMP Act Do?
Employers are now required to provide breaks for expressing breast milk to their employees for one year following childbirth. Employers were already required to provide such breaks to non-exempt employees under the language of the Affordable Care Act. The PUMP Act expands these protections to exempt employees, or those employees that are exempt from overtime pay under the FLSA, which typically includes salaried employees, including but not limited to teachers, managers, and nurses. This opens the door to potentially millions of employees to enjoy these rights.
The PUMP Act further requires employers to provide their employees with a space complying with standards set forth in the FLSA. Under these standards, the space or room provided to employees must be:
- shielded from view;
- free from intrusion from coworkers and the public;
- available each time it is needed by the employee; and
- not a bathroom.
Employers may take varying approaches to satisfy these requirements. For instance, one employer may provide a vacant room otherwise closed off from the workplace. Another employer may choose to create a temporary space with partitions or privacy screens to satisfy the requirements under the FLSA. In either situation, the employer must ensure the employee is provided with proper privacy. As an example, this could be done with a locking door or signage properly designating the area for lactation breaks.
The most successful approach may include employers consulting with their employees to find the best manner to provide a satisfactory space for pumping breast milk. This may be especially true for employers with multiple employees that are nursing.
Under the PUMP Act, employers are generally not required to compensate an employee for the time spent on a provided break expressing breast milk unless otherwise required by federal, state, or municipal law. However, an employer may be required to compensate a nonexempt employee for time spent on break if the employee is not completely relieved from duty during the entirety of the break. If the employee continues to perform parts of their job while on this break, then the time spent on break is counted towards hours worked by the employee. This means the employee must be compensated for this time.
Nonexempt employees must still be paid for breaks in which they are pumping breast milk if they are doing so during a break time that is otherwise paid. Exempt employees’ pay will generally stay the same, regardless of whether they take lactation breaks.
The PUMP Act does not apply to employers with fewer than 50 employees if complying with the act would pose an undue hardship to the employer. Undue hardship is assessed on an individual employee basis and considers the employer’s size, financial resources, nature, or business structure. The employer bears the burden of proving that compliance with these provisions would be an undue hardship on the employer where the nursing employee has the right to pump at work. Additionally, the PUMP Act also provides limited exemptions for employees of rail carriers and motor car services.
Violations and Enforcement
The PUMP Act also provides employees with a private cause of action against their employer for failing to provide a space that satisfies the statutory requirements under the law. Before pursuing action against their employer, an employee is required to first notify their employer of the need for the required space. The employer then has ten days to come into compliance with the PUMP Act. No notification or compliance period is necessary for an employee pursuing a private cause of action based on being discharged for requesting a lactation break. An employee can seek remedies for violations, including reinstatement, lost wages, compensatory damages, and liquidated damages.
Employers may find it beneficial to review their internal policies about providing breaks to their nursing employees and consider making changes to better serve their employees if needed.