New Federal Workplace Protections for Nursing Mothers: What Employers Need to Know

In addition to the Pregnant Workers Fairness Act discussed elsewhere in this E-Update, the 2023 federal omnibus spending act also included the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act). This new law expands the existing lactation accommodations for nursing mothers under the Fair Labor Standards Act (FLSA).

What Is Currently Required. The FLSA was amended in 2010 to require employers to provide reasonable break time as needed and a private place, other than a bathroom, for nursing mothers to express breast milk for one year following a child’s birth. This requirement, however, applied only to non-exempt employees. Employers with fewer than 50 employees are not subject to this requirement if compliance would impose an undue hardship, determined by looking at the difficulty or expense of compliance in the context of the size, financial resources, nature and structure of the particular employer’s business.

Employees using existing paid break time for this purpose must be paid for the nursing break; any additional break time required for this purpose can be uncompensated.

What the New Law Does. The PUMP Act expands the breastfeeding accommodations to include exempt, as well as non-exempt, employees. It also specifies that the employee must be completely relieved from work, otherwise the time is counted as hours worked, which is relevant for non-exempt employees whose actual time worked must be tracked for purposes of calculating compensation and overtime. The new law maintains the exception for small employers for whom compliance would impose an undue hardship. There are new exceptions for certain employees of air and rail carriers, as well as motorcoach services operators.

The same guidelines as to payment for the break time are carried over into the new law. However, there are new provisions related to the location: employers have 10 days in which to come into compliance with the location requirement after an employee notifies them of their need for nursing breaks, and an employee can bring a lawsuit against the employer if it fails to do so. The 10-day period does not apply if the employee has been fired because they requested a nursing break/location or opposed an employer’s conduct related to this requirement, or if the employer has stated that they will not provide an appropriate private location for the purpose of expressing breast milk.

What Next? Many employers were already providing nursing breaks/locations for exempt employees, despite the fact that the FLSA’s mandate applied only to non-exempt employees. Those employers who did not provide such breaks/locations will now need to do so.

The PUMP Act specifically does not preempt State or local laws that provide greater protections. For example, Baltimore City’s ordinance imposes extremely detailed and strict requirements for the breastfeeding location (within a certain distance of the employee’s workspace) and amenities (e.g. table, refrigerator, running water), as well as requiring a written policy, in addition to other mandates, as discussed in our April 11, 2019 E-lert. Thus, employers should ensure that they are aware of any additional requirements that may apply beyond the federal law.