On December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (the "PUMP Act") became effective, amending employers' obligations under the Fair Labor Standards Act ("FLSA"). Last month, the U.S. Department of Labor ("DOL") adopted guidance to assist employers in complying with the PUMP Act. Almost all non-exempt employers have until April 28, 2023 to bring their workplace policies concerning nursing employees into compliance with the PUMP Act. This Article addresses employers' obligations under the PUMP Act and encourages employers to familiarize themselves with the Act to avoid violations of the FLSA.

What is the PUMP Act?

Prior to the PUMP Act, employers already had an obligation to provide a private space for nursing employees. The PUMP Act further requires an employer, for one year after the child's birth, to provide an employee a reasonable break time "each time such employee has need to express the milk." When a nursing employee is using break time at work to express breast milk, the employer must either completely relieve the employee of their duties or pay the employee for the break time. Additionally, when employers provide paid breaks, an employee who uses that paid break to express breastmilk must be compensated in the same manner as other employees are compensated for break time. Employers do not need to provide a space to express milk if no employee has a need to express milk.

The PUMP Act serves as a baseline for protections for nursing employees, and states are permitted to provide greater protections to employees.

Who is Covered by the PUMP Act?

Nearly all employees covered by the FLSA are entitled to take breaks and access a private space to express breast milk. Some employees in the transportation industry, such as certain employees employed by airlines, railroads, and motorcoach carriers, are exempt from nursing employee protections. Employers with fewer than 50 employees may be entitled to an exemption if the break time and space requirements would impose an undue hardship. The DOL suggests that an 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."

What is a Reasonable Break Time?

The PUMP Act does not define what constitutes a reasonable break time. However, guidance adopted by the DOL recognizes that the frequency and duration of breaks to express milk will vary based on the nursing employee and the needs of the child. Factors such as the location of the private space and the length of set-up or cleaning required may affect the duration of time a nursing employee needs to express milk. Additionally, remote employees are also eligible to take pump breaks in a manner commensurate with other employees.

What is a Private Space?

Covered employees are entitled to "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public." The space must be functional as a space to express milk. If there is not a specified room for nursing, an employer must still provide a space that is shielded from view and free from intrusion, even if on a temporary basis. Additionally, remote employees must befree from observation by any employer-provided system, including computer camera, security camera, or web conferencing platform.

Enforcement and Remedies

The enforcement provisions of the PUMP Act take effect on April 28, 2023. Employers who violate the PUMP Act or retaliate against those who seek to exercise the rights provided them under the Act, may be liable for payment of lost wages, reinstatement if employee was terminated, promotion, compensatory damages, punitive damages where appropriate, and make-whole relief.

An employee may file a complaint with the Wage and Hour Division of the Department of Labor or may file a private cause of action. If an employee chooses to pursue a private right of action, the employee must provide notice of the alleged violation to the employer and permit the employer 10-days to cure the alleged violation. This notice provision does not apply to retaliation claims or instances where the employer has indicated that it has no intention of complying with the PUMP Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.