For over a decade, federal law has required most employers to provide a nursing mother with reasonable break time to express breast milk after the birth of her child for up to one year after childbirth. Last December, the PUMP for Nursing Mothers Act became law. The PUMP Act provides additional workplace protections for employees who need to express breast milk, creating protections for an estimated nine million more employees.
Last week, the Wage and Hour Division published, Enforcement of Protections for Employees to Pump Breast Milk at Work, to help Department of Labor field staff enforce the law. This blog post is your movie trailer version of this latest publication.
Break Time Requirements
An employer may not deny a covered employee — teleworkers too — a need break to pump. The frequency, duration, and timing of breaks needed will vary depending on factors related to the nursing employee and the child. Employers and employees may try to create a fixed schedule, but pumping needs may require adjustments or exceptions.
The PUMP Act does not require that employees be compensated for break time needed to pump breast milk “unless otherwise required by Federal or State law or municipal ordinance.”
For nonexempt employees, employers should compensate them for pump breaks the same way they would other employers who are compensated for break time. That is, pump breaks that do not exceed 20 minutes are compensable. Pump breaks over 20 minutes are unpaid — unless the employee performs work concurrently.
Subject to limited exceptions, an exempt employee must receive the full salary for any week the employee performs any work, regardless of the number of days or hours worked. Therefore, employers cannot deduct the time spent pumping from their pay. Doing so may result in losing the exemption.
The FLSA already requires that nursing employees have access to a place to pump breast milk at work that is:
- shielded from view;
- free from intrusion from coworkers and the public;
- available each time the employee needs it; and
- not a bathroom.
The space should be functional for pumping, with a place for nursing employees to sit and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.
Employers must ensure the employee’s privacy, for example, by displaying a sign when the space is in use or providing a lock for the door. Telecommuters can turn off computer cameras.
Employers with fewer than 50 employees must demonstrate that compliance would impose an undue hardship to claim the small employer exemption from the pump time requirements of the FLSA. This is a high bar. The WHD emphasizes that “because the law requires only space and time for unpaid breaks for one year after a child’s birth, and the employer must be able to demonstrate ‘significant’ difficulty or expense, employers will be exempt only in limited circumstances.”
There’s a new workplace poster. Post it at work. Electronic posting may be ok too.
For more information about the PUMP Act, check out these links
- Pump at Work website
- WHD Fact Sheet #73, FLSA Protections for Employees to Pump at Work
- FLSA Protections to Pump at Work Frequently Asked Questions (FAQs)
- Pump at Work Protections under the Fair Labor Standards Act – Presentation
- FAB 2023-2: Enforcement of Protections for Employees to Pump Breast Milk at Work