The Department of Labor Wage and Hour Division provides guidance on enforcement of the PUMP Act

By Attorney Max Dehn and Attorney Madilyn Maruna

The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) took effect on April 28, 2023. The Department of Labor Wage and Hour Division issued a Field Assistance Bulletin regarding the enforcement of the PUMP Act. This bulletin provides the DOL’s perspective on obligations, exemptions, and protections under the Act.

Employer Obligations

• Break Time
  • Employers must provide nursing employees with reasonable break time to express breast milk for one year after a child’s birth. The frequency, duration, and timing of breaks are case specific.
  • The employer and employee may agree on a pumping schedule, but the employer may not require the employee to adhere to a fixed schedule.
  • Employees who telework are also eligible for this break time.
• Compensation
  • Break time under the PUMP Act does not have to be paid unless otherwise required by law.
  • The time must be paid if a non-exempt employee is not completely relieved of duty during the break. This is consistent with FLSA requirements for other off-the-clock matters, such as lunch breaks.
  • A non-exempt employee may choose to use existing paid break time to pump.
  • Break time cannot be deducted from an exempt employee’s salary.
• Space Requirements
  • A nursing employee must have access to a place to express breast milk that is:
    • Shielded from view;
    • Free from intrusion from coworkers and the public;
    • Available each time the employee needs it; and
    • Not a bathroom.
  • An employer must ensure privacy by, for example, providing a sign or providing a lock for the door.
  • The space must be functional. It must contain a place for the nursing employee to sit and a flat surface, other than the floor, to set the pump. Employees must also be able to store milk safely.
  • Space requirements may vary depending on the number of nursing employees and their work schedules. For example, one employer could have several nursing rooms, while another may dedicate a large room to nursing employees and provide privacy screens so multiple employees can utilize the same room.

Some Employers May Be Exempt

• Small employers (fewer than 50 employees) that demonstrate compliance would pose an undue hardship. All employees who work for the employer are counted in this number, regardless of work site. The undue hardship analysis is determined on an individual employee basis, and the employer bears the burden of proof.
• Air carriers are not required to comply concerning crew members.
• Rail carriers and motorcoach service operators are exempt until December 29, 2025, when there remain limited exemptions.

Employee Protections & Enforcement

• Employees are protected from retaliation.
• Employees can file a complaint with the DOL’s Wage and Hour Division regarding violations of the PUMP Act.
• Employees can bring a private lawsuit at any time to enforce the reasonable break time requirement.
• An employee can bring a private lawsuit regarding the employer’s failure to provide a space to pump if the employee has notified the employer of the need for space and has allowed ten days for the employer to come into compliance. An employee need not provide this notice if they were fired in retaliation for exercising rights under the PUMP Act or if the employer refused to comply.

Employer Posting Requirements

The DOL Wage and Hour Division published an updated FLSA poster that reflects the current PUMP Act requirements. Employers should ensure they are posting the current version.

Additional Resources

The following are additional resources from the DOL Wage and Hour Division that are helpful for employers to ensure compliance with the PUMP Act:

• Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work
• Frequently Asked Questions – Pumping Breast Milk at Work
• Public Presentation – Pump at Work Protections Under the Fair Labor Standards Act

Cavitch Employment Attorneys Can Help with PUMP Act Compliance

If you have questions about the PUMP Act, contact Cavitch Employment Attorneys Max E. Dehn and Madilyn M. Maruna at 216-621-7860 or [email protected] [email protected].