On December 29, 2022, President Biden signed into law new legislation passed by Congress to protect the rights of workers who are nursing mothers: the Providing Urgent Maternal Protection for Nursing Mothers Act (“PUMP Act”). The PUMP Act was amended to the Fair Labor Standards Act (“FLSA”) to ensure that nursing employees have the right to reasonable break time and a suitable private place to pump at work.
The PUMP Act requires that all employers covered under the FLSA provide both exempt and non-exempt status workers reasonable break time to pump breast milk for a nursing child in a private place that is shielded from view, other than a bathroom.
The law became fully effective on April 28, 2023.
The PUMP Act provides a federal right to pump breast milk at work. Some states and localities may provide more extensive rights than offered under federal law. In those instances, federal law does not preempt state or local laws when they provide greater protection to workers. The PUMP Act is a floor, providing a base of protection to employees, not a ceiling to those rights that may be extended under state or local law.
Who is a covered employer under the PUMP Act?
Under the FLSA, of which the PUMP Act is a part, a covered employer is one with at least 50 employees. For those businesses with under 50 total employees, regardless of worksite, there is small business exception if providing break time and space would impose an undue hardship.
NOTE: Certain businesses in the transportation industry, such as airlines, railroads, and motorcoach carriers are not subject to the FLSA. These businesses may, however, be subject to state and local laws.
What constitutes an undue hardship under the PUMP Act?
“Undue hardship” under the PUMP Act is a high standard that must pose significant difficulty or expense to the employer, such that it is too difficult or too expensive to provide, considering the employer's size, financial resources, and the needs of the business.
What is the employer required to provide in terms of break time?
An employer must provide reasonable break time for an employee to express milk for a nursing child for up to one year after the birth of the child.
When expressing breast milk, the employee must either be completely relieved from duty or paid for the break time.
- Break time may be unpaid unless required by federal, state, or local law, or by collective bargaining agreement.
- If an employee is entitled to paid break time, the employee must be compensated the same way as other employees on break time.
- A non-exempt status employee must be paid if using a paid break period to express milk. If not using a paid break period, the break can be unpaid.
- If an employee is not entitled to paid break time, the employee must still be given time to express milk and must be completely relieved of duty and not work during the break.
- An exempt status employee should be paid full salary, as required by law, regardless of whether breaks are taken or not.
What is the employer required to provide in terms of a private space?
- An employer must provide a private place for the employee to express breast milk that is shielded from the view of and intrusion from co-workers and the public.
- The private space must not be a bathroom, even if it is a private bathroom.
- The space may be a temporary one that is set up for the nursing employee, so long as it is always available to the employee and is shielded from the view of and intrusion from others.
Is retaliation by the employer covered under the PUMP Act?
- An employer may not interfere with any individual’s rights under the PUMP Act.
- An employer cannot discharge or in any other manner discriminate against any employee for engaging in a protected activity such as:
- filing any complaint, or instituting or causing to be instituted any proceeding under or related to this Act; or
- testifying or preparing to testify in any such proceeding; or
- serving or preparing to serve on an industry committee.
What are the remedies for an employee if an employer violates the PUMP Act?
For interfering with an employee’s right to break time or private space, or for retaliation for engaging in protected activity, the remedies may include:
- Employment;
- Reinstatement;
- Promotion;
- Payment of lost wages;
- An additional equal amount as liquidated damages;
- Compensatory damages and make-whole relief, such as economic losses that resulted from the violations;
- Punitive damages where appropriate; and
- Attorneys’ fees and costs if the employee prevails in the case.
As always, if you have any concerns about your rights as a nursing mother, or are having difficulties obtaining reasonable break time or a suitable private space to express breast milk for a nursing infant, or are experiencing retaliation from your employer for exercising your rights or in support of someone else exercising theirs, you should seek legal assistance.
When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.