The DOL Provides Additional Guidance on the PUMP Act

Following issuance of Frequently Asked Questions and an updated Fact Sheet on the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act) as discussed in our March 2023 E-Update, the U.S. Department of Labor has now released a Field Assistance Bulletin to provide additional clarification on how this new law should be applied.

The PUMP Act expands existing lactation protections for nursing mothers under the Fair Labor Standards Act, as discussed in our December 2022 E-Update. Under the new law, employers are required to provide nursing mothers with a reasonable amount of break time and private space to express milk for up to one year after the child’s birth.

The new guidance provides some interesting detail regarding how the DOL intends to interpret an employer’s obligations under the Act, including the following points:

Break Time. The DOL emphasizes that employers may not deny a needed pump break, and notes that the frequency, length and timing of the breaks needed will vary depending on the employee’s specific situation, as well as other factors like the location of the private space and pump setup requirements. In addition, while the employer and employee may agree to a schedule of breaks, the employer may not insist that the employee adhere to a schedule that does not meet their needs. Moreover, the schedule may require adjustment as the employee’s needs change.

Paid Breaks? Pump breaks need not be paid unless required under Federal, state or local law. The FLSA requires that breaks of 20 minutes or less must be paid, and if the employer provides such breaks to its employees generally, nursing employees may use such paid breaks to pump. If extended time or additional breaks are required beyond any generally-provided break, these need not be paid (although the current guidance does not actually state this, the point is expressly asserted in the Fact Sheet), as long as the employee is entirely relieved from work for the whole break.

If the employee is non-exempt (meaning that they are entitled to the minimum wage and overtime protections of the FLSA), any paid break of 20 minutes or less is considered hours worked for purposes of calculating overtime, regardless of whether the employee is using it to pump or not. Unpaid breaks do not count as hours worked. However, if an employee performs any work during the unpaid pump break, the time spent working is hours worked and must be paid.

Exempt employees (those who meet certain job duties tests and are paid a salary of at least $684 per week) must be paid their entire weekly salary, regardless of any pump (or other) breaks.

Private Space. The FLSA requires that an employer provide a space for pumping that is: shielded from view; free from intrusion from coworkers and the public; available as needed; and not a bathroom. The DOL states that a temporarily-created space or one that is made available when needed is sufficient to meet this requirement. The employer can ensure the employee’s privacy by providing a lock for the door or displaying a sign when in use. In addition, including when teleworking, employees must be free from observation by computer camera, security camera, or web conferencing platform while pumping.

Functional Space. The pumping space must also be functional, meaning that it has a place for the employee to sit and a flat surface other than the floor, on which to place the pump. Employees must also be able to safely store milk at work – this could mean an insulated container, personal cooler, or refrigerator. The DOL notes that the space should “ideally” include access to electricity and a nearby sink.

Space Options. The DOL suggests options for pumping space, such as a vacant office or storage room with a door and covered windows, or creating a space with partitions. If there is more than one nursing employee, employers should consider whether a dedicated space or more than one space is required, or a larger space with privacy screens between employees.

Small Employer Exemption. In addition to exemptions for certain employees of employers that are air carriers, rail carriers, and motorcoach services, the PUMP Act also has an exemption for employers with fewer than 50 employees if compliance causes them an undue hardship. This assessment is made on an individual employee basis, under the particular circumstances. The employer must establish “significant” difficulty or expense of compliance based on its size, financial resources, nature and structure of its business. Because the pump break/space requirement lasts only for a year after the birth of a child, the DOL warns that the exemption will only apply in “limited circumstances.”

Remedies for Violations. According to the DOL, an employee whose rights under the law are violated may receive remedies that include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.

No Retaliation. Employees are protected from retaliation for engaging in protected activity, including requesting or taking pump breaks, or making internal or external complaints of violations – including to the DOL’s Wage-Hour Division – of their PUMP Act rights, among other things. Retaliation is any adverse action that would dissuade a reasonable employee from engaging in any protected activity. An example of retaliation provided by the DOL is requiring an employee to make up the time they took for pump breaks and holding that time against them for determining whether they met a sales (or other production) quota.

Posting Requirements. Employers must post the mandatory FLSA notice, which includes provisions on the minimum wage, overtime, child labor, and the PUMP Act. The DOL has just issued a revised version of this poster, as discussed elsewhere in this E-Update.