By: Ty Hyderally, Esq., Francine Foner, Esq., and Adela Barbura

Employees returning from maternity leave are often in need of an accommodation to provide a private space to pump breastmilk for their newborn.  On December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mother Act (“PUMP Act”) was signed into law, and went into effect on April 28, 2023, for most covered employees.

The PUMP Act (“Act”) amended the Break Time for Nursing Mothers Act (“BTNM”) under the Fair Labor Standards Act (FLSA), to extend the break time and space protections to pump breast milk at work. The PUMP Act further expanded the types of employees covered and increased available remedies to employees for employers failing to comply with the Act or retaliating against employees asking for accommodations under the Act.

The BTNM required employers to provide nursing mothers with reasonable break time to breastfeed or lactate, as well as a place, other than a bathroom, to breastfeed or lactate. However, the PUMP Act provided solutions to the shortcomings of the BTNM, by extending reasonable break time accommodation and space protections to pump breast milk to approximately 9 million more employees who were previously excluded, including registered nurses, farmworkers, and many others.  However, the PUMP Act does not apply to airline flight attendants and pilots.

Reasonable Break Time Requirements

Under the PUMP Act, employers are required to provide nursing employees with reasonable break time each time the employee needs to pump breast milk at work. Employers are barred from requiring nursing employees to adhere to a fixed schedule. Rather, according to the United States Department of Labor “the frequency, duration, and timing of the breaks needed” will be determined by the needs of the nursing employee. Jessica Looman, Principal Deputy Administrator, Enforcement of Protections for Employees to Pump Breast Milk at Work, U.S. Dep’t of Lab.: Wage and Hour Div. (Field Assistance Bulletin No. 2023-02), May 17, 2023, at 8. The private room must be shielded from view, free from intrusion, and available each time the nursing employee needs it.

Compensation of employees during break times for pumping breast milk is treated in the same manner as other break times for employees under the Federal Labor Standard Act (FLSA), so that “break time to pump will be considered hours worked if an employee is not completely relieved from duty during the entirety of the break.” Id.

Covered Employers

The PUMP Act applies to all employers regardless of size but permits employers with fewer than 50 employees to seek an exemption from the PUMP Act “if compliance would require an undue hardship.” Id. at 5. Hardship is determined based upon “the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.” Id. However, because the PUMP Act requires “only space and time for unpaid breaks for one year after the child’s birth” and the employer must demonstrate “significant difficulty or expense,” exemptions from the PUMP Act are granted in only “limited circumstances.” Id.

Private Right of Action for Employees

The PUMP Act grants nursing employees a private right of action against employers who fail to comply with the PUMP Act’s provisions, e.g., failing to provide a private space or failing to grant reasonable break time accommodations. Employers are also prohibited from retaliating against a nursing employee who requests accommodations under the PUMP Act. Remedies include “employment, reinstatement, promotion, [] the payment of wages lost,” and other economic harms or losses. Looman, supra, at 7.

For nursing employees wishing to bring forth a claim against an employer, there is no wait time or special procedure for bringing forth “a private suit to enforce the reasonable break time requirement.” Id. at 8. Nursing employees may also “file a complaint with the WHD [Wage and Hour Division] about violations of any PUMP Act protections.” Id.

Before bringing forth a private suit against an employer’s failure to provide space to pump, the employee must first inform the employer that they are in violation of the PUMP Act and allow ten days for the employer to comply with the required accommodations. However, the employee is not required to provide this notice:

• If the worker has been fired for requesting reasonable break time or space;
• If the worker has been fired for opposing employer conduct related to FLSA pump at work rights; or
• Where the employer has expressed a refusal to comply.

Looman, supra, at 2.

By expanding the number of covered workers, creating private right of actions for employees, and providing greater protections and accommodations for breastfeeding workers, the PUMP Act is an exciting step forward in protecting nursing employees and combating gender discrimination in the workplace. For more information, you can read the full PUMP Act here.  Contact a Hyderally & Associates attorney today if you have any questions about the PUMP Act or if you believe that your employer has failed to accommodate your requests for reasonable break times and space to pump breastmilk.

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