On December 29, 2022, the Offering Pressing Maternal Protections for Nursing Moms Act (“PUMP”) was signed into legislation. PUMP additional amends the federal Honest Labor Requirements Act (“FLSA”) by extending protections for workers who want to precise breast milk at work. PUMP broadens the obtainable cures for violations and extends worker protection necessities. The U.S. Division of Labor Wage and Hour Division (the “DOL”) just lately issued steering on PUMP’s necessities.
Abstract of Adjustments Beneath PUMP
In 2010, Part 7 of the FLSA was amended by the Affected person Safety and Reasonably priced Care Act to incorporate break time and lactation area necessities for workers who wanted to precise breast milk at work. These break time and lactation area necessities are addressed intimately under and stay substantively unchanged with the enactment of PUMP. Nevertheless, PUMP additional amends the FLSA to increase its cheap break time and lactation area protections to pump breast milk at work to as many as 9 million extra staff, together with FLSA-exempt staff who weren’t beforehand lined by the Reasonably priced Care Act’s modification.
Moreover, PUMP amends the FLSA to offer a personal proper of motion for aggrieved staff and clarifies how time spent pumping counts as hours labored for minimal wage and extra time functions if an worker will not be fully relieved from their duties through the break.
Break Instances and Compensation
Employers should present staff who want to precise breast milk “an inexpensive break time” for as much as one 12 months after a baby’s beginning “every time such worker has want to precise the milk.” The DOL’s steering on PUMP makes clear that: (i) an employer might not deny a lined worker break time to pump; (ii) the “frequency, length, and timing of breaks” will differ relying on components such because the wants of the nursing worker and baby and the lactation area; (iii) the employer and worker might comply with a set schedule offered that adherence to the schedule fits the worker’s wants; and (iv) staff who work remotely are additionally eligible to take pump breaks as in the event that they had been engaged on web site.
Employers will not be obligated to compensate staff for pump breaks “except in any other case required by Federal or State legislation or municipal ordinance.” Exempt staff, akin to bona fide government, administrative, {and professional} staff, should be compensated throughout pump breaks, in accordance with the FLSA’s wage foundation necessities. Non-exempt staff will not be entitled to compensation throughout pump breaks offered that they’re fully relieved from work duties throughout pump breaks and paid break time will not be in any other case required by relevant legislation. If a pump break is interrupted by work, the time spent working is compensable. For instance, if a non-exempt worker receives a work-related cellphone name throughout their break, that point might be counted as hours labored, in accordance with the DOL.
Lactation Areas
Employers should present staff who have to pump with a spot, aside from a rest room, that’s shielded from view and free from intrusion from coworkers and the general public, and that’s obtainable every time an worker must pump. The DOL steering on PUMP elaborates that the designated place should be a “practical area for pumping” and should present the next: (i) a spot for the nursing worker to sit down; (ii) a flat floor, aside from the ground, on which to put the pump; and (iii) the power to soundly retailer milk at work (e.g., a fridge). Ideally, employers may also present staff entry to electrical energy, so staff can make the most of an electrical pump (which operates extra effectively than a battery-operated pump), and entry to a sink, so staff can wash their palms and clear pump attachments. There is no such thing as a one-size-fits-all method and employers want to think about the variety of nursing staff and their work schedules to find out whether or not multiple area must be designated or created.
Exemptions
There are some exemptions to those break time and lactation area necessities. An employer using fewer than 50 staff (no matter location of worksite) will not be topic to those necessities, if the employer would undergo an “undue hardship” as a result of “vital issue or expense” of compliance “in relation to the dimensions, monetary sources, nature, or construction of the employer’s enterprise.” The DOL advises that small employers “might be exempt solely in restricted circumstances.”
Crew members who carry out duties in an plane throughout flight time, akin to pilots and flight attendants, are additionally exempt from the break time and lactation area necessities. Sure staff of rail carriers and motorcoach providers operators are at the moment exempt, however might be entitled to PUMP’s protections beginning December 29, 2025.
Accessible Treatments
With PUMP’s enactment, staff now possess a personal proper of motion and might search all authorized and equitable cures obtainable below the FLSA, akin to liquidated damages. In accordance with the DOL, these cures can be found no matter whether or not the worker has skilled retaliation.
Earlier than submitting a civil lawsuit for the failure to offer a lactation area, the worker is required to first notify the employer of the necessity for an area and supply the employer 10 days to return into compliance, except: (i) the worker has been fired for exercising their rights below the FLSA or opposing the employer’s conduct; or (ii) the employer expresses a refusal to conform. There are not any discover necessities for submitting a grievance with the Wage and Hour Division or submitting swimsuit to implement an inexpensive break time requirement (not an area requirement).
Discover/Posting Necessities
The Wage and Hour Division has printed an up to date FLSA poster reflecting the necessities of PUMP, which can be utilized to fulfill FLSA’s discover and posting necessities.
State or Native Legal guidelines
PUMP and the DOL steering expressly state that nothing within the federal legislation preempts any state legislation or municipal ordinance that gives higher protections to staff. New York State, for instance, just lately clarified employer obligations and worker protections below its Nursing Moms within the Office Act, which can take impact on June 7, 2023. New York State’s Nursing Moms within the Office Act is along with New York Metropolis’s lactation lodging legislation. For extra data on these legal guidelines, please click on right here.
Takeaways
Employers ought to assess their present break time practices and obtainable lactation areas to make sure compliance with PUMP. Employers should be aware of those necessities when speaking with staff about their anticipated break time wants, together with the timeframe for offering a lactation area after a request (10 days) and learn how to deal with a number of worker requests for a lactation area.
