THE PUMP ACT: PROTECTIONS AND CONSIDERATIONS FOR PEOS

The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) expands legal rights and protections of exempt and non-exempt, nursing employees under the Fair Labor Standards Act (“FLSA”). The PUMP Act went into effect on December 29, 2022, and additional enforcement remedies took effect on April 28, 2023. Certain states and municipalities have laws related to expressing milk, but the PUMP Act provides federal protections on a nationwide basis. The United States Department of Labor (“DOL”) Wage and Hour Division recently published Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work to provide information to employers on the PUMP Act’s protections for nursing employees.

WHO IS COVERED?
Employers covered by the FLSA must comply with the PUMP Act, and the law’s protections apply to both exempt and nonexempt employees with certain exceptions for employees of airlines, railroads, and motor coach carriers. Employers with fewer than 50 employees could be exempt from the PUMP Act if they can show undue hardship. The exemption does not apply to employers with 50 or more employees. The PUMP Act also includes anti-retaliation provisions.

REQUIREMENTS: BREAK TIME AND PRIVATE SPACE

For up to one year after the birth of an employee’s child, employers must provide reasonable break time and a private space, other than a bathroom, each time a nursing employee needs to express breast milk for a nursing child. Break times for pumping may be unpaid unless otherwise required by federal, state, or local law. If an employee is not completely relieved for their job duties when pumping or pumps during an otherwise paid break, the employee should be paid.

An employer may not deny a covered employee needed break time to pump, and the frequency and duration of employee breaks under the PUMP Act can vary depending on individual employee needs. The private space provided by employers for employees to express milk must be functional for expressing breast milk. The space cannot be a bathroom and must be shielded from view and free from intrusion by co-workers and the public.

PRACTICAL ADVICE FOR PEOS

Apart from the Fact Sheet, the DOL is publishing industry-specific guidance and recently published guidance related to the retail and restaurant industries through a webinar, associated presentation slides, and frequently asked questions (FAQ) publication. The DOL also published guidance related to the education industry, transportation industry, care worker industry, agricultural industry, and general industry. PEOs and their clients may reference the guidance to equip themselves with resources and information specific to industries they support.

PEOs and their clients may review and update any break, compensation, and reasonable accommodation policies, as needed. Unless otherwise required by federal, state, or local law, break time spent pumping can be unpaid. Even so, if an employee is not completely relieved from duty while pumping, the employee must be paid. For example, if an employee pumps during a requisite safety meeting where staff is discussing on the job safety goals, the employee must be paid for the time spent working. Also, if an employer provides paid breaks, an employee who pumps during such break must be compensated in the same way as other employees on breaks.

The Occupational Safety and Health Administration (“OSHA”) says “exposure to reproductive hazards in the workplace is an increasing health concern.” Given potential workplace hazards in certain employment settings, PEOs and their clients should tactfully consider the safety of the private space offered to pumping employees. Employers can temporarily convert an existing space, other than a bathroom, into a private space for pumping, but the location must be “functional” for pumping.

PEOs and their clients may wish to train human resources professionals, management, supervisors, and other leaders on the PUMP Act, as well as policies and practices with respect to the law. Leaders should be able to recognize requests related to pumping and be equipped to swiftly manage them. These training measures may promote awareness and effective handling of pumping requests.

PEOs and their clients may consider creating a process (similar to an Americans with Disabilities Act (“ADA”) process) for employees to follow when requesting to pump or other pregnancy-related accommodations under the Pregnant Workers’ Fairness Act (“PWFA”). According to the Equal Employment Opportunity’s (“EEOC”) proposed regulations, lactation (including breastfeeding and pumping) will generally be considered under the PWFA.

PEOs and their clients may want to review state and local wage and hour requirements and update their DOL poster to include the PUMP Act.

This article is designed to give general and timely information about the subjects covered. It is not intended as legal advice or assistance with individual problems. Readers should consult competent counsel of their own choosing about how the matters relate to their own affairs.