The PUMP for Nursing Mothers Act (“PUMP Act”) went into effect on December 29, 2022.
Under the Fair Labor Standards Act (“FLSA”), most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view to express breast milk while at work. This right is available for up to one year after the child’s birth.
Time to Pump
For one year after the child’s birth, covered employees may take reasonable break time “each time such employee has need to express the milk.”
The frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child. Employees who telework are eligible to take pump breaks under the FLSA on the same basis as other employees.
Space to Pump
Covered employees must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Under the FLSA, a bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing employee’s use, it must be available when needed by the employee in order to meet the statutory requirement.
Covered Employees
Nearly all FLSA-covered employees have the right to take needed time and to access an appropriate space to express breast milk for a nursing child for up to one year after the child’s birth.
Employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Compensation for Time to Pump
Under the FLSA, when an employee is using break time at work to express breast milk they either:
- Must be completely relieved from duty; or
- Must be paid for the break time.
Further, when employers provide paid breaks, an employee who uses such break time to pump breast milk must be compensated in the same way that other employees are compensated for break time.
No Retaliation
It is a violation of the FLSA for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”
Violations
An employer who violates an employee’s right to reasonable break time and space to pump breast milk will be liable for appropriate legal or equitable remedies under the FLSA. Remedies may include 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. These remedies are available regardless of whether the employee has also experienced retaliation.
