Employment Law Update

The omnibus spending bill passed by Congress in December 2022 included the “Providing Urgent Maternal Protections for Nursing Mothers Act”, a.k.a. the PUMP Act. Congress first addressed employment protections for nursing mothers in the Break Time for Nursing Mothers Act, passed in 2010, as part of the Affordable Care Act. That law, which amended the Fair labor Standards Act (FLSA), required employers of 50 or more employees to provide break time to express breast milk to their non-exempt employees. (See our earlier article on the 2010 law).  The PUMP Act further amends the FLSA, by expanding the existing protections. Significantly, the PUMP Act will also protect exempt employees and other types of workers not previously covered.

Beginning December 29, 2022, employers with 50 or more employees must provide a private, non-bathroom space accessible to the employee when needed for lactation purposes. The space need not be a permanent or dedicated space for nursing mothers; it may be a temporarily repurposed space, as long as it is available when needed by the employee, is shielded from view and free from any intrusion from co-workers and the public. The U.S. Department of Labor has updated its Fact Sheet on FLSA Protections for Employees to Pump Breast Milk at Work to address the changes made by the new law.  

Employers with fewer than 50 employees are exempt if the requirements would create an undue hardship on the employer. The space provided must be shielded from view and free from intrusion by coworkers or the public. The PUMP Act requirements apply when an employee begins providing breast milk for a nursing child or gives birth, including to a stillborn child or a child over whom the employee does not retain legal custody.

Employers must provide breaks for employees to express breast milk. The PUMP Act does not require an employer to compensate non-exempt employees for that break (unless required by another federal, state, or local law). However, the break time will count as compensable time-worked if the employee is not fully relieved of all duties for the entire duration of the break.  

Exempt employees must receive their full weekly salary regardless of whether they take breaks to express breast milk.

The PUMP Act requires employees to give their employer notice that the employer is not in compliance and allow the employer 10 days to come into compliance before the employee can commence an action for a violation. This requirement does not apply if the employer tells the employee that it does not intend to comply with the law or if the employer retaliates against the employee for requesting a lactation accommodation by discharging the employee.

Virginia, Washington, D.C., and Baltimore City already have similar laws regarding employer accommodations for employees who need to express breast milk during working hours. The ordinance in Baltimore City applies to employers with two or more full-time employees.  

Covered employers should ensure that they have the appropriate space to accommodate an employee who needs to express breast milk at work. Employers should also review their break policies to ensure compliance with the PUMP Act as well as any other state or local laws.

If you have questions about the PUMP Act, please contact:

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

Tonya R. Foley
410-576-4238 • tfoley@gfrlaw.com