I am pumped! Are you?
Last week, the U.S. Department of Labor issued a Field Assistance Bulletin to its staff on how to enforce the PUMP for Nursing Mothers Act, which was signed into law at the end of 2022 and is currently in effect.
It's always good to know in advance how the government intends to enforce these laws, so here is my summary of the Bulletin in "FAQ" format.
Isn't this old news?
Yes and no. The Nursing Mothers Act been the law since 2010, but it applied only to employees who were non-exempt under the Fair Labor Standards Act. The PUMP Act is not radically different, but it applies to many exempt employees and has a few other tweaks.
Both laws require employers to provide nursing employees with break time to express milk, and a clean and private place in which to do it. The obligation is in effect for one year after the birth of the baby.
Under the NMA, the break time was unpaid. Under the PUMP Act, it's still unpaid -- in theory. More on that shortly.
Also, under the NMA, if the employer failed or refused to comply, the employee's only recourse was to file an administrative complaint with the DOL. (Some employees successfully sued their employers in court under Title VII, contending that lactation was a "pregnancy-related condition.") Under the PUMP Act, employees can go directly to court and sue for violations of the PUMP Act. They don't have to shoehorn their claims into Title VII. But I suspect that most plaintiffs will now sue under both laws.
How much pumping time does an employer have to allow?
As much as the employee needs. If you've ever had a baby, you know that the need is frequent at first, and tapers off as the baby gets older. The Bulletin gives the example of an employee who needs four 25-minute breaks per shift at the beginning, later decreasing to two 25-minute breaks per shift. In addition to the maturity of the baby, the DOL says that the employer's lactation set-up could affect the length or frequency of the breaks needed. But, in case there is any doubt: "An employer may not deny a covered employee a needed break to pump."
The DOL says that the employer and employee can agree to a schedule for pump breaks, but even then the employer will have to make exceptions as the employee's needs require.
We know that the pumping area has to be private and clean and not a bathroom! Are there any new requirements under the PUMP Act?
Not really. The area has to be "shielded from view" (that is, private), "free from intrusion from coworkers and the public" (that is, private), available "each time it is needed by the employee," and "not a bathroom." A temporary pump area is fine as long as it meets these requirements. The DOL doesn't require it, but I think it would be a good idea to have a door that locks.
Although these requirements aren't new, there are new workplace conditions that were either rare or nonexistent in 2010. For example, the DOL says that an employee who works remotely should not be subject to computer surveillance during nursing breaks. If a remote worker is on a videoconference, she should be allowed to turn off her camera while she is nursing her baby or expressing milk.
As far as the pumping space is concerned, the DOL says that the area should have electricity if possible, a place for the employee to sit, and a flat surface (not a floor!) on which she can put her pump. There should also be a way for the milk to be safely stored -- for example, a refrigerator, an insulated container, or a cooler.
Although it doesn't have to be in the lactation room, the DOL recommends having a sink with running water and soap nearby so that the employee can clean up afterward.
Employers are not required to have a permanently designated space for lactation breaks. Large employers with a steady population of nursing employees may want to do that, but smaller employers -- or employers with only an occasional nursing employee -- can improvise as needed.
What has changed about the pay for pumping breaks?
A lot, primarily because the PUMP Act applies to many FLSA-exempt employees as well as non-exempt. When only non-exempt employees had the right to lactation breaks, the time could be unpaid because non-exempt employees generally get paid only for time they are working. (This is an oversimplification and not a comprehensive summary of FLSA obligations.)
The DOL Bulletin clarifies that if the break time would normally be paid by the employer, and if the employee chooses to use that time for a pumping break, then she has to be paid for that time. Also, if the employee is not completely relieved of duty during the break -- for example, if she has to take a work-related call while on lactation break -- then she has to be paid for the time. The DOL seems to be taking the position that any pumping break of 20 minutes or less must be paid: "Short breaks, usually 20 minutes or less, . . . must be counted as hours worked."
If the employee qualifies for one of the FLSA exemptions that require her to be paid on a "salary basis," meaning she gets the same pay each workweek "regardless of the quantity of work performed" (with limited exceptions), then the pump breaks have to be paid. Always. In other words, the employer can't "dock" this type of exempt employee for pump break time even if absolutely no work is performed during the break.
The "white-collar exemptions" under the FLSA (executive, administrative, and most professional) require that the employee be paid on a salary basis, as does the outside sales exemption.
Are any employers exempt from this law?
Yes, but don't get excited. An employer with fewer than 50 employees is exempt if providing pumping breaks would be an "undue hardship." The burden of proof is on the employer. And, "[b]ecause the law requires only space and time for unpaid breaks for one year after a child's birth, and the employer must be able to demonstrate 'significant' difficulty or expense, employers will be exempt only in limited circumstances."
How about employees?
Crew members of airline carriers are not entitled to lactation breaks, but other airline employees are. Certain employees of rail carriers and motor coach services operators will not be entitled to lactation breaks until December 29, 2025. Even then, under certain conditions, the employer may not have to provide the breaks. (More details are available in the Bulletin.)
Does the PUMP Act have a no-retaliation provision?
You had to ask? According to the DOL, PUMP-protected activity includes making an internal complaint or a complaint to the DOL's Wage Hour Division, asking for payment of wages, "consulting with WHD staff or cooperating with a WHD investigation," asking for a lactation break or a private area in which to pump, and testifying at a trial. If an employee suffers any adverse employment action for engaging in any of these activities, then the employer would be liable for retaliation.
Is there a posting requirement?
You betcha! The DOL updated its FLSA poster last month to include the PUMP Act. The DOL recommends that employers replace their current FLSA posters with this one. (A larger version is also available.)
Posting electronically is fine, too, if
(1) all of the employer's employees exclusively work remotely,
(2) all employees customarily receive information from the employer by electronic means, and
(3) all employees have readily available access to electronic posting at all times.
Bulletin, p. 8 (emphasis added).
Come to think of it, maybe you'd better use the paper poster. Or electronic plus paper.