New Guidance on Federal Protections for Pregnant and Nursing Workers

The U.S. Department of Labor (DOL) recently published new resources regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As we previously explained in detail, the PUMP Act amended the Fair Labor Standards Act (FLSA) to mandate that, unless an employer is specifically exempted under the law, the employer must provide reasonable break time to allow an employee to express breast milk, and must permit the employee to do so in a reasonably private location other than a bathroom.

To clarify the protections for employees and employer obligations under the PUMP Act, DOL’s Wage and Hour Division (WHD), which enforces the FLSA and other federal labor laws, issued an updated Fact Sheet and new Frequently Asked Questions (FAQs).

WHD Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk

The Fact Sheet, updated in January 2023, provides a broad overview of the FLSA, focused on the PUMP Act’s protections. In its summary, the Fact Sheet emphasizes certain points, including that:

• A covered employee’s right to take reasonable breaks to express breast milk lasts a full year after the birth of a nursing child.

• The right to take breaks entitles a covered employee to take a break each time such employee has the need to express milk. This can be multiple times a day.

• Employers may not deny needed breaks, and the frequency and duration of breaks can vary depending on various personal and practical factors.

• Employers must provide a private and functional space to express breast milk. The space can be temporarily arranged, or provided on an as-needed basis, but it cannot be a bathroom.

• The PUMP Act’s coverage is broad; only certain employees of airlines, railroads, and motorcoach carriers are specifically excluded. In addition, employers with fewer than 50 employees may be exempt if compliance would impose an undue hardship.

• If an employee is not paid for break time used to express breast milk, then employers may not impose any job duties on the employee during the break. Employers who provide paid breaks must permit employees to use paid break times to express breast milk and must compensate them in the same way as other employees who are compensated for paid breaks.

• Employers may be liable under enforcement provisions that take effect soon if they fail to provide reasonable break time and/or appropriate space for employees who need to pump breast milk. Remedies for failure to comply with the PUMP Act will become available starting April 28, 2023, and include requiring the employer to employ, reinstate, or promote an employee, double payment of lost wages (liquidated damages), compensatory damages, additional payment to cover economic losses caused by violations, and even punitive damages. These remedies for PUMP Act violations are in addition to remedies already available under the FLSA wage payment requirements and its prohibitions of retaliation.

The Fact Sheet also provides examples to illustrate how employers can comply with the law under various theoretical circumstances.

FAQs - Break Time for Nursing Mothers

Using a Question & Answer (Q&A) format, the FAQs provide basic information about the PUMP Act, including links to related guidance documents. While much of the FAQs’ content reiterates information provided by the Fact Sheet, a few “answers” provide additional information. One key point is that the FLSA requirements under the PUMP Act do not preempt state laws that provide greater protections to employees. Currently, at least thirty states, plus the District of Columbia and many cities, have employment laws related to breastfeeding.

Another detail noted by the WHD is that compliance with the PUMP Act does not mean all covered employers need to create a permanent space for use by nursing workers. Employers are not obliged to provide a dedicated space if there are no employees who need to express breast milk.

What About the Pregnant Workers Fairness Act?

Remember that the PUMP Act was enacted in tandem with another federal law protecting pregnant and nursing workers, the Pregnant Workers Fairness Act (PWFA). That law, enforced by the U.S. Equal Employment Opportunity Commission (EEOC), requires covered employers to provide reasonable accommodations for a worker with limitations due to pregnancy, childbirth or “related medical conditions,” such as lactation. Like other federal equal employment opportunity laws, PWFA applies to employers with 15 or more employees.

While regulations have yet to be promulgated, the EEOC has published guidance (titled “What You Should Know About the Pregnant Workers Fairness Act”) in a Q&A format to explain the PWFA. Among other things, the Q&A points out that, although the EEOC cannot accept charges under the PWFA before it takes effect on June 27, 2023, pregnant employees may already be entitled to accommodations under other laws, such as Title VII or the Americans with Disabilities Act (ADA).

Like the PUMP Act, the PWFA is not preempted by state laws. Employers should consider their policies and practices with respect to pregnant and nursing workers carefully, in light of local and federal protections.