PUMP Act Makes Employers Liable for Violations of Break Times or Private Spaces for Nursing Mothers

Hopefully, employers are already providing a private space for nursing mothers to express milk and sufficient break time to do so as required by the Fair Labor Standards Act (FLSA). The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), passed on December 29, 2022, further solidifies these requirements and makes employers liable for appropriate legal or equitable remedies under the FLSA.

Who Is Covered?

Most employees are covered by the PUMP Act, though some industries related to transportation (airlines, railroads, and buses) may be exempt. Employers with fewer than 50 employees may be exempt from the PUMP Act if it imposes an "undue hardship." Factors used to consider undue hardship include but are not limited to the expense or difficulty in complying with the requirements of the law when considering its size, finances, and structure of its business. Note that industries exempt from the PUMP Act may be covered by state or local laws.

What Are the Key Provisions?

The key provisions of the PUMP Act are as follows:

1. For one year after the birth of a child, a nursing mother must be provided reasonable break times each time the employee needs to express milk. The frequency and duration of the break times will depend on the factors relating to the nursing mother and her child.
2. Employers must provide employees with a private space free from the intrusion of others to express milk. This cannot be a bathroom, even if that space is private.
3. Break times need not be paid if the employee is fully relieved from work. If the employer provides paid break time for its workforce, the female employee must be allowed to use those paid break(s) to cover some/all of her lactation needs.

Remedies

Beginning on April 28, 2023, an employer who violates an employee’s rights to break times and/or a private space to express milk may be subject to an employee filing a claim with the DOL Wage & Hour Division or bringing a direct action in federal court. Remedies now include all "make-whole" relief that includes reinstatement, lost promotions, lost wages, and an additional amount equal to lost wages as liquidated damages, compensatory damages, and punitive damages if proven.