The Department of Labor’s (DOL’s) Wage and Hour Division (WHD) recently published guidance regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), dictating how WHD officials may go about enforcing the PUMP Act. Specifically, agency officials will enforce recent “pump at work” provisions added to the Fair Labor Standards Act (FLSA). Part of President Joseph R. Biden’s $1.7 trillion omnibus spending bill signed in December 2022, the expanded rights for pregnant and nursing mothers also included pregnancy accommodations.
Background of the PUMP Act
Signed in late 2022, the PUMP Act expands protections for nursing mothers to express milk in the workplace. The PUMP Act builds on a 2010 amendment to the FLSA. This amendment required covered employers to provide non-exempt employees with reasonable lactation breaks and a private, non-restroom location to express milk for one year following the birth of a child. The PUMP Act now extends these protections to exempt workers. This includes salaried employees at businesses with 50 or more employees on payroll.
Remedies under the PUMP Act are the same as under other provisions of the FLSA. However, before an eligible employee can begin an action for an employer’s failure to provide lactation breaks or a suitable location to express milk, they must notify their employer and allow them ten days to remedy the situation. This requirement is waived if the employer has retaliated against the eligible employee. Enforcement of the PUMP Act is effective 120 days following its enactment.
Guidance on Enforcing the PUMP Act
While Field Assistance Bulletin No. 2023-02 focuses on actions officials take in enforcing the PUMP Act, employers themselves need to understand how the WHD will interpret and enforce the law that covers most employees. Key enforcement areas will include the following:
- Break Time Requirements – The WHD will emphasize that employees are entitled to breaks whenever they must express milk at work. The associated length and frequency of breaks will vary from employee to employee. Employers and employees may tentatively make a specific schedule for nursing breaks. However, the employer may not hold the employee to that strict schedule. An employee’s needs and break schedule may require adjustment over time.
- Paid or Unpaid Nursing Breaks – According to the agency, pump breaks are unpaid unless required by another federal, state, or local law. However, employers must track and compensate employees for time spent pumping if they were not fully relieved from work duties. This will count as hours worked.
- Privacy Requirements – Employers must provide a place for nursing mothers to express milk that is shielded from view, free from intrusion from coworkers and the public, available whenever needed, and is not a bathroom. Employers are encouraged to provide a sign and/or lock the door when the dedicated space is used. Meanwhile, teleworkers must be free from any surveillance or other digital observation when on the computer.
- Functionality of the Space – In addition, any dedicated space for expressing milk in the workplace must be “functional” for pumping. This means it must contain a place to sit, a flat elevated surface to place a pump, an electricity source, and access to sinks. Employees must also be able to store milk in a refrigerator or a cooler.
Retaliation Provisions and Exemptions
The FLSA prohibits retaliation against any employee engaged in protected activity under the law. This includes requesting break time for the purposes of expressing milk or the payment of wages. At the same time, employers may not ask employees to work extra to compensate for time spent on nursing breaks. Nor may employers hold this missed time against employees for certain quotas.
In laying down rules for enforcing the PUMP Act, the recent guidance does make some exemptions for small employers in implementing the law. According to the guidance, employers with fewer than 50 employees nationwide might be exempt from PUMP Act provisions if they can show it would cause undue hardship. However, an employer must show that an accommodation would require significant difficulty or expense in light of the size, financial resources, nature, and structure of the business.