Dana Dobbins
By Dana Dobbins
The ability to pump breast milk in the workplace is protected by the 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 for nursing to pump breast milk at work. The 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 cognizant 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 the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. 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 cannot deny a break for a covered employee who needs to pump.
Notably, the break time requirement also applies to teleworking employees.
The PUMP Act does not require that employees be compensated for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.” Under the FLSA, employers are not required to compensate employees if they are completely relieved from work duty for these 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 that employers provide a space, other than a bathroom, that is shielded from view and free from intrusion by co-workers and the public. The space must be “functional” as a space for expressing breast milk. The DOL has issued guidance explaining that the space must contain (1) a place for the nursing employee to sit and (2) a flat surface, other than the floor, on which to place the pump. Further, employees must be able to store milk while at work.
The DOL also recommends that the room include access to electricity to allow the nursing employee to plug in an electric pump, which can be more efficient than a battery-operated pump. However, these are recommendations, not requirements.
Remedies
An employee may file a complaint with the Wage and Hour Division or may file a private cause of action if the employer is not providing an adequate space to pump. An employee filing a private cause of action must inform their employer of a failure to provide adequate private space for expressing breast milk to activate the protections of the PUMP Act. Once notified, employers have a 10-day cure period before the employee may file suit.
Notice is not required, however, before filing a complaint with the Wage and Hour Division or a private action based on an employer’s failure to provide a reasonable break time.
Remedies available to employees are the traditional FLSA remedies, including reemployment, reinstatement, and promotion, and payment of lost wages, liquidated and compensatory damages, and punitive damages, where appropriate.
Exemptions
The FLSA provides an exemption for small employers (less than 50 employees) if compliance would impose an undue hardship in light of the employer’s 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 in compliance with the PUMP Act. If you are unable to identify a permanent location, a temporary or converted space will suffice if it is made available to the nursing employee when needed, shielded from view, and free from intrusion. The space must also be available when the employee needs it.
State and local laws sometimes provide protections beyond what federal law requires. For example, Colorado law requires an employer to provide reasonable break time for up to two years after the child’s birth. Employers must comply with each of the various lactation accommodations imposed in any jurisdiction where the company operates.
