Department of Labor Issues Guidance for PUMP Act Enforcement

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Quick Look

  • All employers covered by the FLSA are required to provide reasonable break times and a space to express breast milk at work for a year after a child’s birth.

Discussion

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) amended the Fair Labor Standards Act (FLSA) to expand existing requirements to provide employees with reasonable break times and a private location to express breast milk for one year after a child’s birth. The PUMP Act was included in the Consolidated Appropriations Act, 2023 and went into effect December 29, 2022. Additional remedies created by the PUMP Act for plaintiffs went into effect April 28, 2023. As part of its enforcement responsibilities, the Department of Labor’s Wage and Hour Division (WHD) recently published Field Assistance Bulletin No. 2023-02. Although the guidance is for field staff enforcing the PUMP Act, it provides helpful information for employers including examples of the most important requirements.

Break Time. The frequency, duration, and timing of breaks will vary based on the requirements of the nursing employee and child. 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. Any agreed-upon schedule between the employer and employee may need to change based on the employee’s needs. Remote employees are to be treated as if they were working on-site.

Compensation. Pump breaks are unpaid unless otherwise required by federal, state, or local law. If an employee is not completely relieved from duty for the entirety of the break, then they must be compensated since the break will be considered hours worked. FLSA salaried exempt employees also may not have their salaries reduced to reflect pump breaks.

Lactation Space Requirements. Spaces to pump breast milk at work must be: 1) shielded from view; 2) free from intrusion from coworkers and the public; 3) available each time it is needed by the employee; and 4) not a bathroom. Ensuring privacy can be accomplished by displaying a sign or providing a lock for the door when the space is in use. Remote employees must be free from observation by computer cameras or web conferencing platforms. The space must contain a place for the nursing employee to sit, a flat surface other than the floor to place a breast pump, an insulated food container, personal cooler, or refrigerator to store milk safely, and have access to electricity and a sink to ensure a sterile environment. To accomplish these requirements, employers can utilize vacant offices, storage rooms, partitions, or privacy screens so long as all the other conditions are met.

Exemptions. Employers with less than 50 employees can claim an exemption from the requirements if it would cause an undue hardship. The burden is on the employer to demonstrate the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.

Retaliation Prohibited. Employees cannot be discharged or in any other manner discriminated against for filing a complaint regarding the pump at work protections. Violations can result in reinstatement, promotion, payment of wages lost and an equal amount as liquidated damages, compensatory damages, make-whole relief, and punitive damages.

Poster. The WHD has published an updated poster with the current pump at work requirements. It must be posted in a conspicuous location in every establishment where employees are employed. Electronic posting is sufficient if all of the employer’s employees exclusively work remotely, all employees customarily receive information from the employer by electronic means, and all employees have readily available access to electronic postings at all times.

 

Action Items

  1. Review and update meal and rest break policies.
  2. Review space requirements for pump breaks and provide accommodations.
  3. Display required posting.
  4. Have appropriate personnel trained on the requirements.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase