Key Takeaways

• The DOL provides employers with guidance for complying with break time and space requirements under the newly enacted PUMP Act.
• The PUMP Act extends lactation protections to millions of exempt employees who were not previously covered.
• Employers should review the DOL guidance to ensure their policies comply with the new pump-at-work requirements. If employers do not comply with the PUMP Act, employees can go directly to court and sue for violations.

Background

On May 17, the Department of Labor (DOL) issued guidance concerning an employer’s obligation to provide nursing employees with reasonable break times and a private place to pump breast milk at work.

In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide breaks and space for certain employees to pump at work. However, only nonexempt employees who qualified for overtime were guaranteed lactation accommodations.

In December 2022, with the passage of the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, Congress significantly expanded employers’ obligations to provide breaks and space for nursing employees. As the new DOL guidance explains, the PUMP Act extends lactation protections to millions of employees who were not previously covered — including exempt employees whose salaries may not be reduced to reflect this break time.

Highlights From the New DOL Guidance

• Employers must provide nursing employees with a place to pump, other than a bathroom, that is shielded from view and free from intrusion. Employers must ensure the employee’s privacy by, for example, providing a lock for the door or a sign indicating when the space is in use. The space must contain a place to sit and a flat surface other than the floor on which to place the pump. Ideally, the space should also include access to electricity and a nearby sink.
• Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler or refrigerator.
• Exempt, salaried employees must continue to be paid their full weekly salaries even if absolutely no work is performed during their pump breaks. In other words, employers cannot “dock” these employees for their break time.
• While the time a nonexempt employee spends pumping milk is not generally compensable “hours worked,” they should be paid for their pump breaks if they are not completely relieved of their duties during this time, if the break is 20 minutes or less or if otherwise required by law.
• There is no maximum number of breaks. Instead, the frequency, duration and timing of the breaks needed will likely vary based on factors unique to each nursing employee and child.
• An employee’s rights under the PUMP Act are available for up to one year after the child’s birth.
• An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but 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.
• Remote employees are entitled to take pump breaks on the same basis as if they were working on-site.
• Employers cannot retaliate against workers for exercising their lactation rights or filing a complaint about a PUMP Act violation.
• If an employee has been denied lactation protections or has experienced retaliation, they may either file a complaint with the DOL’s Wage and Hour Division or bring a private lawsuit against the employer. Remedies for violations of the PUMP Act include reinstatement, promotion, payment of lost wages, liquidated damages, compensatory damages, make-whole relief, and punitive damages.
• To meet the FLSA’s posting requirement, employers should post the updated April 2023 FLSA poster that reflects current pump-at-work requirements.

Exemptions

In limited circumstances, certain employers may be exempt from the PUMP Act’s lactation protections.

Employers with fewer than 50 employees may be exempt if they can demonstrate that compliance would impose an undue hardship. All employees who work for the employer, regardless of work site, are counted when determining whether this exemption may apply. Undue hardship is determined on a case-by-case basis, and it considers 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.

Exemptions also apply to crew members of air carriers, such as flight attendants and pilots.

Certain employees of rail carriers and motorcoach services operators are covered by the PUMP Act, though they do not have to comply until December 29, 2025. These employers can extend their exemption past that date if they can prove compliance would result in significant expense or unsafe conditions for the employee or passengers.

Employees who are exempted may still be entitled to break and/or space protections under state or local laws.

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