The ability to pump breast milk in the workplace is protected by the Fair Labor Standards Act (FLSA). In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements to pump breast milk at work. The Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be aware of the PUMP Act requirements, as well as any further protections imposed by state and local law.
Break Time Requirements
The PUMP Act requires employers to allow covered employees, for one year after a child’s birth, to take reasonable break time when they need to express milk. The Act is silent about what’s considered reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent for these issues to be determined on a case-by-case basis depending on an employee’s individual needs.
The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space and the steps reasonably necessary to express breast milk, such as pump setup. An employer can’t deny a break for a covered employee who needs to pump.
Notably, the break time requirement also applies to teleworking employees.
The PUMP Act doesn’t require employers to compensate employees for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.” Under the FLSA, employers aren’t required to compensate employees if they’re completely relieved from duty for the breaks. If an employer provides employees with paid breaks, a pump break must be compensated in the same manner.
Lactation Space Requirements
The PUMP Act requires employers to provide a lactation space, other than a bathroom, that’s shielded from view and free from intrusion by coworkers and the public. The space must also be “functional” as a space for expressing breast milk. The DOL has issued guidance explaining that the space must contain a place for nursing employees to sit and a flat surface, other than the floor, to place the pump on. Also, employees must be able to store milk while at work.
The DOL also recommends that the room include access to electricity to allow nursing employees to plug in an electric pump, which can be more efficient than a battery-operated pump. However, these are recommendations, not requirements.
Remedies and Exemptions
An employee may file a complaint with the Wage and Hour Division (WHD) or file a private claim if the employer doesn’t provide an adequate space to pump. An employee filing a private claim must inform the employer of the failure to provide adequate private space for expressing breast milk to activate the PUMP Act’s protections. Once notified, the employer has a 10-day cure period before the employee may file suit.
Notice isn’t required, however, before filing a complaint with the WHD or a private claim based on an employer’s failure to provide reasonable break time.
Remedies available to employees are the traditional FLSA remedies, including reemployment, reinstatement, promotion, payment of lost wages, liquidated and compensatory damages, and punitive damages, when appropriate.
The FLSA provides an exemption for small employers (fewer than 50 employees) if compliance would impose an undue hardship in light of the employers’ size, financial resources, nature, and structure of the business. There are also exemptions for certain employees of air carriers, rail carriers, and motorcoach services.
Practical Pointers
There are many creative solutions for providing a dedicated lactation space compliant with the PUMP Act. If you’re unable to identify a permanent location, a temporary or converted space will suffice if it’s made available to nursing employees when needed, shielded from view, and free from intrusion. The space must also be available when employees need it.
State and local laws sometimes provide protections beyond what federal law requires. For example, Colorado law requires employers to provide reasonable break time for up to two years after a child’s birth. Employers must comply with each lactation accommodation requirement imposed in any jurisdiction where they operate.
Dana Dobbins is an associate with Holland & Hart LLP’s employment and labor practice group. She practices out of the firm’s Denver, Colorado, office and may be reached at dmdobbins@hollandhart.com.