As August is National Breastfeeding Month, this is a good opportunity to become familiar, or even reacquainted, with the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), enacted under the Consolidated Appropriations Act (CAA), 2023. The CAA, 2023, was signed into law on December 29, 2022.
Under the PUMP Act, most employees have the right to break time and a private space to express breast milk for their nursing child.
The PUMP Act amends the Fair Labor Standards Act (FLSA) to extend existing FLSA protections for nursing employees. Generally, the FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time employees in the private sector and in federal, state, and local governments. The FLSA also protects the rights of employees to pump breast milk at work.
Highlights of the PUMP Act, effective on December 29, 2022, include:
- Covered Employers: All employers covered by the FLSA must comply with the PUMP Act.
PUMP Act Employer Exemptions:
- Crewmembers of air carriers, including pilots and flight attendants
- Certain employees of rail carriers and employees of motorcoach services operators (delayed compliance with PUMP Act requirements until December 29, 2025)
- Small employers: Employers with fewer than 50 employees if compliance would impose an undue hardship.
- 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.
- All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
- Reasonable break time: Most employees have the right to take reasonable break time to express breast milk for their nursing child. An employer may not limit the number of breaks. An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump and this schedule can be adjusted over time as the employee’s pumping needs change. However, an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump.
- Private space: Covered employees must be provided with a private space to pump breast milk that is shielded from view and free from intrusion from coworkers and the public. The private space may be temporarily created or converted into a space for pumping or made available when needed by the nursing employee as long as the space is shielded from view and free from intrusions by coworkers and the public.
Private Space Requirement Points:
- Bathrooms, even if private, are not permissible for an employee’s pump breaks.
- Employers may, but are not required to, create permanent dedicated spaces for employee pump breaks including:
- A dedicated pumping room on each floor of a large facility, or
- A large room with privacy screens between employees.
- The private space requirement also applies to teleworking nursing employees.
- This space must be free from observation by any employer-provided or required video system, including a computer camera, security camera, or web conferencing platform.
- One year after the child’s birth: Covered employees may take reasonable break time each time such employee has a need to express the milk for one year after the child’s birth.
- Compensation: Employees are not required to be compensated for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.”
When an employee is using break time at work to express breast milk, they must either be completely relieved from duty or must be paid for the break time. Moreover, when employers provide paid breaks, an employee who uses their break time to pump breast milk must be compensated in the same way that other employees are compensated for break time, including under applicable state and local laws.
FLSA Employee Classification:
- Non-exempt nursing employees must be completely relieved from duty, or the time spent pumping must be counted as hours worked.
- Exempt nursing employees must be paid their full weekly salary regardless of the number of breaks they take to express milk.
- Telework: Employees who telework are eligible to take pump breaks under the FLSA on the same basis as other employees.
- State Laws: The FLSA requirements under the PUMP Act set a baseline of protections for nursing employees. Any state laws that exceed the PUMP Act requirements and provide greater protections for employees must be complied with in addition to the PUMP Act.
- Retaliation Prohibited: Employers are prohibited from retaliating against employees for exercising their rights under the PUMP Act, filing a complaint, or cooperating with an investigation.
- PUMP Act Violation Remedies: Employees whose rights under the PUMP Act are violated may be entitled to remedies available under the FLSA including, but not limited to, employment, reinstatement, promotion, lost wages payment, liquidated damages, and compensatory damages.
- Posting Requirements: Employers are required to post the updated FLSA Minimum Wage Poster with PUMP Act language in a conspicuous place at each worksite location. Employers may electronically post the required poster if:
- all of the employer’s employees work remotely,
- all employees customarily receive information from the employer by electronic means, and
- all employees have readily available access to electronic posting at all times.[1]
The Department of Labor (DOL) provides a helpful webpage with PUMP Act resources along with a DOL Field Assistance Bulletin for additional guidance.
Breastfeeding Benefits Coverage
On a related note in honor of National Breastfeeding Month, breastfeeding services and supplies are required to be covered under non-grandfathered group health plans as preventive care and not subject to participant cost-sharing. This includes coverage of:
- Lactation support services
- Double electric breast pumps (including pump parts and maintenance)
- Breast milk storage supplies
Employer Takeaways
Employers subject to the PUMP Act are advised to:
- Train HR team members, managers, and supervisors on the requirements to provide reasonable break time and an appropriate private space for nursing employees.
- Comply with any applicable state or local laws that provide greater protections than the PUMP Act requirements.
- Post the updated FLSA Minimum Wage Poster in a conspicuous place at each worksite location or electronically, as appropriate.
On a final note, the CAA, 2023, also included the Pregnant Workers Fairness Act (PWFA), which amends the Americans with Disabilities Act (ADA) and is effective as of June 27, 2023, The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” Click here to learn more.
Risk Strategies is here to help. For more information, or for our white paper (Family Building Benefits & Policies – New Territory for Creating a Strong DE&I Strategy), contact your Risk Strategies representative or benefits@risk-strategies.com.
[1] In accordance with DOL Field Assistance Bulletin 2020-7.
