Effective April 28, 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) went into full effect. The PUMP Act applies to all employers that are covered under the Fair Labor Standards Act (“FLSA”) and protects all nursing mothers (with very limited exception for certain employees of airlines, railroads, or motor coach carriers), regardless of whether the employee is exempt from minimum wage or overtime. Small employers (those with fewer than 50 employees), may be exempt from the Act if they can prove that compliance would “impose an undue hardship by causing the employer significant difficulty or expense.”
Under the PUMP Act, employers are required to provide reasonable break time to nursing mothers each time the employee needs to express breast milk for up to one year after the birth of their child. Because the law requires breaks “each time” the employee needs to pump, employers may not restrict the duration or frequency of the breaks. In addition, nursing employees must be provided with a functional space that is (1) shielded from view; (2) free from intrusion from coworkers and the public; and (3) may be used to pump breast milk. This space cannot be a bathroom (no matter how private), but can be a temporary or “as needed” space—such as an empty office—so long as the employer puts a sign on the door to alert others not to enter, or, better yet, provides a space that can be locked from the inside. Employers must provide a functional space for each nursing mother; so it may be necessary for employers to designate more than one space depending on the needs of their employees.
Employers are cautioned not to forget about their remote employees. While employers do not have to provide a functional space to remote workers, employers must allow remote employees to turn off their cameras while the employee is pumping, and must also ensure that employees are completely relieved of their duties or properly compensated.
Employers are not required to pay for breaks as long as the employee is fully relieved from their duties when pumping. If the employee is not completely relieved of their duties, their hours must be counted as working time and employees must be compensated accordingly under the FLSA. Moreover, if an employer already provides paid breaks to its employees, and the nursing employee chooses the paid break time to pump, the employer must pay the employee in the same way as it pays other employees for the break time.
Employers are also prohibited from retaliating against employees exercising their rights under the PUMP Act and an employee who believes they are the victim of retaliation can pursue a claim under the FLSA.
Employers who fail to provide reasonable break time and/or functional space requirements may be required to compensate employees for lost wages, liquidated damages, compensatory damages, and punitive damages “where appropriate.” These remedies are in addition to other equitable remedies, such as employment, reinstatement, and promotion.
In light of the PUMP Act and the Pregnant Workers Fairness Act, employers should carefully review their current policies and make sure that they align with these new mandates. Most importantly, employers must ensure their supervisors and human resource personnel are educated on these new laws and equipped to effectively handle employee concerns to reduce exposure to litigation.
Should you have any questions about the Pump Act, please feel free to contact any member of our Labor and Employment team.
The information contained in this document does not constitute legal advice.
