U.S. DOL Issues Guidance on Employer Lactation Accommodations Under New Nursing Mothers Act

By Michael Burns, courtesy of SBAM-approved partner, ASE

Late last year the Providing Urgent Protections for Nursing Mothers Act (PUMP) was passed, which expands existing lactation protections under the Fair Labor Standards Act (FLSA). The PUMP Act goes into effect April 28^th.

It covers all U.S. employers. Businesses under 50 employers may be exempt if they can show that compliance will result in undue hardship. Under the PUMP Act, undue hardship is determined by analyzing the expense and difficulty of compliance against the employer’s size, financial resources, and the nature and structure of the organization.

The law provides that employers must permit employee breaks for lactation or pumping of milk.

This is regardless of exempt or non-exempt status. Break time does not have to be paid. However, if the employer provides paid break time, the nursing employee may use that paid time to nurse.

The law requires a private space be provided that is not a bathroom. It must be shielded from view and should not allow for intrusion by coworkers or the public. The space provided can be a temporary space but must be available when needed. If the location of the lactation space impacts the amount of time needed, this can affect the amount of protected break time necessary.

Be aware of state and other local laws that provide protections that may exceed the federal law. Michigan law holds that breastfeeding in public is not to be considered public nudity but currently does not have an employee specific protection for nursing at a place of employment or providing a specific location for nursing. This means Michigan employers are covered by the federal PUMP Act. For employers with operations in other states, check for any laws in those states. They may have more stringent requirements around notice of rights and such. ASE’s web libraries, CCH AnswersNow and Zywave HR Services Suite, allow you to research this state-by-state.

Other components of the PUMP Act cover remote/teleworking employees. This means the employee has to be free from observation by an employer provided or required video system. That includes a computer’s camera, security camera, or web conferencing platform.

The PUMP Act prohibits retaliation for exercising employee rights under the Act and provides for remedies that includes employment, reinstatement, promotion, and payment of lost wages as well as liquidated or compensatory damages and make other whole relief.

Though not specifically required, going forward, covered employers may want to include a lactation/nursing break policy in their handbooks. A sample policy is below. It should be modified to accurately state what the employer does.

SAMPLE LACTATION POLICY

Recognizing that breast milk promotes optimum growth and development of infants, [your organization] accommodates mothers who choose to continue breastfeeding and avoid the use of formula, after returning to work. Breastfeeding is a normal part of daily life for mothers and infants. Federal law entitles a lactating employee to a reasonable break to express breast milk for her nursing child each time the employee needs to express milk. [Your Organization] protects a mother’s right to breastfeed for one year after the child’s birth.

[Your Organization] allows sufficient break time for breastfeeding employees to express milk at work. Supervisors are encouraged to consider flexible schedules to accommodate an employee’s needs. These breaks will be [specify paid or unpaid].

[Your Organization] provides a private place (other than a bathroom) that is shielded from view and free from intrusion from coworkers and the public for an employee to use when expressing breast milk. If possible, the private space will be close to the employee’s work area and include an electrical outlet for the use of an electric breast pump. If possible, supervisors will ensure that employees are aware of these workplace accommodations prior to maternity leave.

[optional] [Your Organization] provides electric breast pumps for use in the workplace. Employees shall sign a release of liability waiver prior to using the pumps.

For more information, the U.S. Department of Labor issued an FAQ as well as an updated Fact Sheet on the rights of women to take lactation breaks.

Source: The DOL Provides Guidance on Lactation Accommodations Under the New PUMP  for Nursing Mothers Act. Shawe Rosenthal LLP Lexology (3/31/2023)