3 things to know about the new PUMP Act
Most of the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act has been effective since late December, as it was part of the FY 2023 Omnibus Spending Bill. The law expanded the already existing provisions under the Fair Labor Standards Act (FLSA) that requires employers to provide reasonable break time and a private space — other than a bathroom — for working women to use to express breast milk for one year from the child’s birth.
The PUMP Act made a few changes of which employers should be aware:
- The law, which originally did not include employees who were otherwise classified as exempt (a.k.a. salaried) under the FLSA, now does. This means that more employees are now entitled to the breaks and the space. Certain employees of airlines, railroads, and motorcoach carriers, however, are exempt from nursing employee protections under the FLSA, but could be entitled to such protections under state or local laws.
- Employers must pay employees for time spent pumping breast milk if the employees are not completely relieved of work duties; that time must be considered hours worked. If, for example, a teacher chooses to grade papers while pumping breast milk, she must be paid for the time spent pumping and doing this work at the same time.
- Before making a claim of liability against an employer, an employee generally must first notify the employer that they are not in compliance and provide them with 10 days to come into compliance with the required accommodations.
As of April 28, 2023, employers that violate the law can be liable not only for unpaid minimum or overtime wage (per the original provision), but also for employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages, and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.
In practice, employers will benefit from noting the following:
- Employees may take reasonable break time each time they need to express milk. Employers may not deny an employee a needed break to pump.
- The frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child.
- Factors such as the location of the space and the steps reasonably necessary to express breast milk, such as pump setup, can also affect the duration of time an employee will need to express milk.
- Employees who telework are eligible to take pump breaks under the FLSA on the same basis as other employees.
- Employers with fewer than 50 employees are not subject to the break time requirement if they can demonstrate that compliance would impose an undue hardship. Factors to consider include the difficulty or expense in comparison to the size, financial resources, nature, or structure of the employer’s business.
Employers might want to require employees to schedule such breaks in advance as best they can, not only to ensure work coverage, but also to help ensure the space is not otherwise occupied.
Some occupations have unique challenges, but flexibility is key. A commercial driver’s schedule and routes, for example, might need to be adjusted to allow more time for standard breaks. Employers might create space for drivers by providing windshield visors or covers.
Key takeaway: Employers should review their related policies for any needed updates. They should also train supervisors and managers in relation to the changes, to help avoid legal issues.
