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Patricia Tsipras Helena I. Poch Ciechanowski
April 27, 2023
May 19, 2023 Update: Yesterday, the United States Department of Labor’s Wage and Hour Division published a Field Assistance Bulletin to provide enforcement support and public guidance regarding the application and requirements of the PUMP Act.
Beginning April 28, 2023, employees will have new remedies available under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act is federal legislation signed into law by President Biden on December 29, 2022, which expands the Fair Labor Standards Act to provide further protections to employees wishing to express breast milk at work.
Introduction
For over a decade, covered employers have been required to provide reasonable break times and private space in a location other than a bathroom for employees to express breast milk during their workday. These requirements are known as the Break Time for Nursing Mothers law. The PUMP Act extends the Break Time for Nursing Mothers law to more employers and clarifies that pumping time counts as “work time” when an employee is not completely relieved of their work duties during the pumping break. Under the PUMP Act, employees now have the right to file an action in court against an employer who fails to abide by these requirements.
Covered Employers
Under the PUMP Act, all employers – regardless of size – must provide break time and private space to both nonexempt and exempt employees (nonexempt employees were not previously covered) to express breast milk for up to one year following the birth of the employee’s child.
The PUMP Act provides limited exceptions for certain employees in the airline, railroad, and motorcoach industries. Furthermore, employers with fewer than 50 employees may be excused from complying with the law if providing the break time or space would impose an “undue hardship” on the employer (generally, “undue hardship” means significant difficulty or expense, a high burden).
Some state or local laws provide greater protections to lactating workers. Employers operating in those locations must comply with the law offering the greatest protections.
Break Time Requirements
Lactation breaks may be unpaid. However, if employers provide compensated break time, then they must compensate employees for lactation breaks in the same way they compensate other employees for their break time. In addition, employers must pay for lactation breaks if the employee is not completely relieved of all duties during their break.
Private Space Requirements
Employers must provide space for employees to express breast milk that is (1) not in a bathroom; (2) shielded from view; (3) free from any intrusion; (4) functional as a space to express breast milk; and (5) available when an employee needs it.
New Remedies
Prior to the PUMP Act, employees could file a complaint with the United States Department of Labor Wage and Hour Division. Effective April 28, 2023, an employee also may file a complaint in court if (1) their employer violated the break time requirement; (2) their employer has indicated that it has no intention of providing private space for expressing breast milk (but note that, in this scenario, employees must notify their employer – ten or more days before filing a complaint – that private space has not been provided); or (3) the employer has fired the employee for requesting break time or space. Remedies include back pay, front pay, liquidated damages, and attorney’s fees.
*Special thanks to Brooke Palma, our Office Administrator, for her contributions to this article.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
