The Pregnant Workers Fairness Act (“PWFA”) is not the only new pregnancy-related law for employers to look for in 2023. The federal Providing Urgent Maternal Protections for Nursing Mothers Act (or “PUMP Act”) became law in December. The PUMP Act expands upon the requirements set forth in the Break Time for Nursing Mothers provision of the Fair Labor Standards Act (“FLSA”), which requires employers to provide nursing mothers for at least one year after giving birth a reasonable break time to “pump” or otherwise express breast milk and a place to do so (other than a bathroom) that is shielded from view and private. The law only applied, however, to employees who were not exempt from the FLSA’s overtime pay requirements. As a result, most salaried, exempt employees were previously excluded by the law.
The PUMP Act expands existing employer obligations to include providing pumping breaks for exempt employees covered by the Act. Employers should note, however, that under the Act, exempt employees must still be paid their full weekly salary as the law requires, whether or not they take breaks to express breast milk. For non-exempt employees, the PUMP Act clarifies that such break time may be unpaid, unless the employee expresses breast milk during an otherwise paid break period. Additionally, employers should ensure that non-exempt employees are completely relieved of their duties for the entire break period; otherwise, they must be paid for that time.
Significantly, the PUMP Act gives employees a private right of action to sue an employer for failing to comply with the law. Subject to a few exceptions, employees must notify their employer of the alleged violation and give the employer a 10-day period to cure the violation prior to filing suit. The portion of the law providing employees a private right of action does not become effective until April 28.
The PUMP Act applies to all U.S. employers. However, if compliance with the PUMP Act would impose an undue hardship by causing an employer with fewer than 50 employees “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business,” the employer does not have to comply with the Act. Employers should consult with counsel to determine whether a requirement under the Act poses an undue hardship.
In light of this new law, employers should provide a private space for nursing employees to express breast milk. Employers are not required to have a place that is dedicated solely for such purpose, however; if an employee works in a private office that can be shielded from public view, for instance, their employer need not provide an additional or separate space for the employee to pump. Similarly, an existing room used for other purposes could also be used as a space for nursing employees to express breast milk so long as the space is fully private and available when needed. Employers with questions about their obligations under the PUMP Act or PWFA should consult counsel.
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