President Biden Signs PUMP Act into Law, Increasing Employers’ Privacy Obligations to Pregnant Employees

In late December of 2022, President Joe Biden signed into law the Consolidated Appropriations Act, 2023 (“the Act”). The Act contains a new privacy law called the Providing Urgent Maternal Protections for Nursing Mothers Act, known as the PUMP Act. The PUMP Act amends the Fair Labor Standards Act (FLSA) and expands employers’ obligation to provide employees who are pregnant or breastfeeding with (1) reasonable break time to express breast milk for the employee’s nursing child for two years beginning on the date on which the circumstances relating to such need arise, and (2) a place to express breast milk shielded from view and intrusion from coworkers and the public, other than a bathroom, though the space need not be permanent.

Unlike the old FLSA rules, which applied only to certain non-exempt workers, the PUMP Act applies to all employees. Some exceptions exist for (1) employers with fewer than 50 employees, if compliance with the law would cause undue hardship to the business; and (2) crewmembers of air carriers where private places to express breast milk are difficult to create. Additionally, the PUMP Act grants employees two years of statutory protection, as opposed to the one-year provision in the old FLSA. It is important to note, PUMP Act break time must only be paid if the employee is not relieved of all duties for the duration of the break period or if the employee expresses breast milk during an otherwise paid break period.

Employees can enforce their PUMP Act rights through a private cause of action for monetary damages. Before they file suit, employees must give their employer 10-day notice of the noncompliance, during which time the employer may come into compliance to avoid liability. However, employers will not enjoy this safe harbor provision if they either (1) take adverse employment action against the employee for their request for break time or for opposing employer conduct related to the PUMP Act; or (2) the employer has indicated that they have no intention of complying.

For each PUMP Act violation, employers may be liable for unpaid wages, unpaid overtime compensation, liquidated damages, and attorney’s fees, as well as equitable relief such as reinstatement or injunction. Repeat or willful violations of the PUMP Act’s wage provisions may result in a civil penalty payable by the employer of up to $1,100 for each violation.

Although the PUMP Act went into effect when it was signed, the effective date of its new enforcement provisions is April 28, 2023. The Act does not prevent state and local governments from adopting more stringent rules to protect the rights of pregnant and nursing employees. The United States Secretary of Labor will promulgate implementing regulations in the coming weeks, so it is critical that employers:

• Update their human resources department regarding which employees may now be entitled to break time;

• Contemplate whether their facilities are PUMP Act compliant;

• Review whether their policies and procedures require them to compensate employees for PUMP Act break time; and

• Investigate whether or not more rigorous state or local laws may apply.