On December 29, 2022, the Provision of Urgent Maternal Protection for Breastfeeding Mothers (“PUMP”) Act was signed into law. law. The PUMP further amends the Federal Fair Labor Standards Act (“FLSA”), extending protections to employees who need to express breast milk on the job. PUMP expands available remedies for violations and extends employee coverage requirements. The US Department of Wage and Hour Division (the “DOL”) recently issued guidance in the PUMP requirements.
Summary of changes in PUMP
In 2010, Section 7 of the FLSA was amended by the Patient Protection and Affordable Care Act to include time slots and lactation space requirements for employees who needed to express breast milk on the job. These lactation gap time and space requirements are discussed in detail below and remain substantially unchanged with the enactment of the PUMP. However, the PUMP further amends the FLSA to extend its reasonable break time and lactation space protections for pumping breast milk at work for up to 9 million employees, including FLSA exempt employees who were not previously covered by the Affordable amendment. Care Act.
In addition, the PUMP amends the FLSA to provide a private right of action for aggrieved employees and clarifies how time spent pumping counts as hours worked for minimum wage and overtime purposes if an employee is not fully relieved of duty during the interval.
Intervals and Compensation
Employers must provide employees who need to express breast milk “a reasonable interval” for up to one year after the birth of a child “each time such employee needs to express milk”. The DOL guidance on PUMP makes it clear that: (i) an employer may not deny a covered employee time off to pump; (ii) the “frequency, duration and timing of breaks” will vary depending on factors such as the nurse’s and child’s needs and the lactation space; (iii) the employer and the employee can agree on a fixed schedule, as long as the compliance with the schedule adapts to the needs of the employee; and (iv) employees working remotely can also take pump breaks as if they were working onsite.
Employers are not required to compensate employees for pump breakdowns “unless otherwise required by federal or state law or city ordinance.” Exempt employees such as executives, administrative and bona fide professionals must be compensated during pump breaks in accordance with the FLSA salary base requirements. Non-exempt employees are not entitled to compensation during pump breaks provided they are fully relieved of work obligations during pump breaks and paid break time is not required by applicable law. If a pump breakdown is interrupted by work, time spent on work is compensated. For example, if a non-exempt employee receives a work-related call during a break, that time will be counted as hours worked under the DOL.
Employers must provide employees who need to pump with a location, other than the bathroom, that is protected from view and free from intrusion from co-workers and the public, and that is available whenever an employee needs to pump. DOL guidance on PUMP elaborates that the designated location must be a “functional pumping space” and must provide the following: (i) a place for the nurse worker to sit; (ii) a flat surface, other than the floor, to place the pump; and (iii) the ability to safely store milk on the job (eg a refrigerator). Ideally, employers will also provide employees with access to electricity so they can use an electric pump (which operates more efficiently than a battery-operated pump) and access to a sink so employees can wash their hands and wipe their pump accessories. There is no one-size-fits-all approach, and employers need to consider the number of nursing staff and their work schedules when determining whether more than one space should be designated or created.
There are some exemptions to these gap time and lactation space requirements. An employer employing fewer than 50 employees (regardless of workplace location) is not subject to these requirements if the employer experiences “undue hardship” due to “significant difficulty or expense” of compliance “in relation to size, resources , nature or structure of the employer’s business”. The DOL advises that small employers “will only be exempt under limited circumstances.”
Crew members performing duties on an aircraft during flight time, such as pilots and flight attendants, are also exempt from the lactation gap and space requirements. Some employees of rail carriers and bus service operators are currently exempt, but will be eligible for PUMP protections from 29 December 2025.
With the enactment of the PUMP, employees now have a private right of action and can pursue all legal and equitable remedies available under the FLSA, such as liquidated damages. According to the DOL, these remedies are available regardless of whether the employee has been retaliated against.
Before filing a civil action for failure to provide lactation space, the employee must first notify the employer of the need for a space and provide the employer with 10 days to comply, unless: (i) the employee has been fired for exercising your rights under the FLSA or objecting to employer conduct; or (ii) the employer expresses its refusal to comply. There are no notice requirements for filing a complaint with the Wage and Hour Division or filing a lawsuit to enforce a reasonable gap requirement (not a space requirement).
The Wage and Hour Division posted an update FLSA poster reflecting PUMP requirements, which may be used to satisfy FLSA notification and publication requirements.
State or Local Laws
The PUMP and DOL guidance expressly state that nothing in federal law supersedes any state law or city ordinance that provides greater protections for employees. The state of New York, for example, recently clarified employer obligations and employee protections under the Workplace Breastfeeding Mothers Act, which takes effect on June 7, 2023. The Breastfeeding Mothers Act New York State’s breastfeeding in the workplace is an addition to the New York City’s lactation accommodation law. For additional information about these laws, click here.
Employers should evaluate their current break practices and available lactation spaces to ensure compliance with the PUMP. Employers should be mindful of these requirements when communicating with employees about their anticipated break needs, including the time frame for providing a lactation space after a request (10 days) and how to handle multiple employee requests for a lactation space .