On December 29, 2022, President Biden signed the Providing Urgent Maternal Protections (“PUMP”) for Nursing Mothers Act into law. The law went into effect immediately, as we previously reported. The United States Department of Labor has now issued a field assistance bulletin providing guidance to the Wage and Hour Division on the enforcement of the PUMP Act.
The guidance explains that covered employers must “provide nursing employees reasonable break time each time such employee has a need to pump breast milk at work for one year after the child’s birth.” (Emphasis in Bulletin). The guidance further explains that, although an employee and employer may agree to a schedule for pumping, “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.” Additionally, if the employer and employee agree to a schedule, it should be adjusted if the employee’s pumping needs change.
The PUMP Act does not require employers to pay employees for break time used to pump, but the guidance clarifies that employers should consider whether breaks need to be paid pursuant to the Fair Labor Standards Act (“FLSA”) and applicable state and local laws. Per the guidance, non-exempt employees should be paid for time spent pumping unless the employee is completely relieved from all work duties. For exempt employees, an employer cannot reduce the employees’ salary to compensate for the pumping break time.
In addition to requiring employers to provide time to pump breast milk, covered employers must provide nursing employees a place to pump breast milk at work that is shielded from view, free from intrusion from coworkers and the public, available each time it is needed by the employee, and not a bathroom. The guidance explains that the space must also be functional for pumping and “contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump.” Additionally, employees “must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.”
Employers may not retaliate against an employee for asserting rights under the PUMP Act, and an employee may file a complaint with the Wage and Hour Division or a lawsuit against an employee for a violation of the PUMP Act.
Finally, the guidance reminds employers to post and keep a notice regarding the FLSA’s requirements. The notice is available from the Wage and Hour Division and was recently updated to address the PUMP Act requirements.
Employers should ensure that their policies and procedures comply with the updated guidance and that they have an appropriate space available for nursing employees.