This article was originally published in Law360 on February 23, 2023 and is republished here with permission.

On Feb. 8, the U.S. Department of Labor announced that a Michigan auto plant will begin providing employees with more private space to nurse, determining that the car manufacturer made nursing mothers wait up to 20 minutes for lactation rooms.

The agency's investigation and announcement underscore the importance of an employer's duty to ensure that workers' rights are protected when lactation accommodations are needed, including under the newly enacted Providing Urgent Maternal Protections for Nursing Mothers, or PUMP, Act.

What is the PUMP Act?

The PUMP Act expands employers' existing obligations to provide breaks and space for certain employees to express breast milk.

Effective Dec. 29, 2022, under the act, employers must provide:

(1) "A reasonable break time for an employee to express breast milk each time such employee has need to express breast milk for the 2-year period beginning on the date on which the circumstances related to such need arise; and

(2) 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."

These breaks can be unpaid, unless the employee is not completely relieved from work for the entire break or unless otherwise required by applicable federal, state or local law.

The PUMP Act applies to employees with a need to express breast milk, with the exception of airline flight crew members.

It also applies to most employers: Those with fewer than 50 employees may be exempt only if the time and space requirements would impose an undue hardship or significant difficulty or expense, as detailed below.

Employers that have not yet considered compliance will want to review the law's requirements, as well as guidance from the Department of Labor, once issued, and implement the important steps to ensure workers' rights are protected.

What does "undue hardship" or "significant difficulty or expense" mean?

Employers with fewer than 50 employees are not subject to the requirements of the PUMP Act only if the requirements would "impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."

The act does not propose parameters for what would or would not be considered an undue hardship or a significant difficulty or expense. However, the language used in the PUMP Act is similar to the definition of "undue hardship" under the Americans with Disabilities Act, which looks at the cost of accommodation with consideration of the overall resources of the employer. As such, it may be useful to use a similar lens when thinking about lactation spaces as with disability accommodation requests.

Keep in mind that the fewer-than-50-employee requirement counts all employees, regardless of job site or full-time status, and that an employer need only provide a lactation space for the time period for when there is an eligible employee.

Is this stuff really new?

Many state laws and employer policies already provide for breaks and space to express breast milk, so some employers might not be overhauling their break programs and private spaces.

On a federal level, though, the PUMP Act is intended to significantly expand the protections in place since 2010 under the federal Fair Labor Standards Act. Before the PUMP Act's passage, the FLSA only required employers to provide "reasonable break time" for nonexempt employees "to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk."¹

In addition, the FLSA did not provide a private right of action for employees, but the PUMP Act does.

How is the PUMP Act enforced?

If an employer is violating the PUMP Act, an employee may file a complaint with the Labor Department's Wage and Hour Division or bring a suit against the employer for damages.

Unless the employee has been discharged because of a request for a lactation space or break time, or the employer has indicated that it will not comply with the PUMP Act, the employee must inform the employer of its failure to comply and allow 10 calendar days for the employer to come into compliance prior to commencing a suit.

The enforcement mechanisms will take effect on April 28.

What to do now?

Make sure you are compliant with the law.

If you are an employer and do not already have a lactation space but have eligible employees, make sure you provide a lactation space and time accommodations for the eligible employees. If you do not have any eligible employees, plan for what space you may provide if an employee becomes eligible so you are ready if the situation arises.

Keep your eye out for guidance from the Labor Department.

The PUMP Act requires the secretary of labor to issue guidance with respect to the PUMP Act within 60 days of its enactment — that is, by Feb. 27.

This guidance will include specific examples of compliance and be similar to the current guidance relating to "Supporting Nursing Moms at Work," published on the U.S. Department of Health and Human Services's Office on Women's Health's website as of the date of enactment. The comptroller general is required to submit a report containing recommendations to improve compliance by the end of 2024, as well as a future report on racial disparities.

Consider posting a flyer or drafting a policy.

A policy or poster helps notify eligible employees, managers and supervisors of eligible employees' rights. It can also help an employer identify both internally and externally that it is in compliance with federal laws and regulations.

¹ See 29 U.S.C. § 207(r)(1)(A). (Like the PUMP Act, the FLSA also obligated employers to provide a private, non-bathroom space for employees to express breast milk. 29 U.S.C. § 207(r)(1)(B).). 

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