By Liz Hartsel
What is the PUMP Act?
The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) establishes nationwide protections for employees who need to express milk for nursing children at work.
Although President Biden signed it into law in late December 2002, requirements for compliance have been rolled out in phases to allow employers time to prepare. However, as of April 28, 2023, all employers are expected to comply with the PUMP Act or face “meaningful remedies” if found to have violated employees’ rights. Penalties can range from reinstatement to back pay for lost wages or even punitive damages.
What are an employer’s obligations under the PUMP Act?
While the PUMP Act does not explicitly require a permanent, dedicated space for nursing mothers, it does lay out some very specific requirements:
- Employers must provide reasonable break time and a private lactation space for pumping, which cannot be a bathroom, each time an employee needs to express milk.
- The space must be shielded from view and free from intrusion from coworkers and the public.
- The space must be functional for expressing milk. The law does not outline specific features required for establishing a functional space; however, access to electricity, a place to sit and a surface on which to place a breast pump are highly encouraged.
- The space must be available when needed by the employee for at least one year after the child’s birth.
- Employers are not required to compensate employees for time spent expressing milk, but if they choose to do so, that time must be counted as hours worked for purposes of the FLSA.
- Break time used for expressing milk may be unpaid if the employee is exempt from overtime under the FLSA.
- Employers must provide protection against retaliation for employees who exercise their rights under the law.
What size and type of employer does the PUMP Act apply to?
The PUMP Act applies to nearly all employers covered by the FLSA, regardless of size or industry, including those with fewer than 50 employees. Even employers who do not have a traditional office space, such as restaurants or retail establishments, must provide a private space for employees to express breast milk that meets the functional requirements outlined in the Act. Currently, the only exceptions are for airline crew and pilots, coach bus and railway workers.
However, employers with fewer than 50 employees may be eligible for an exemption to the lactation space requirement if they can demonstrate that providing the space would impose an undue hardship. It’s important to note, though, that the law sets a very high standard for demonstrating undue hardship. Employers are required to prove that providing the space would be prohibitively expensive or that it would fundamentally alter the nature of the employer’s business.
What should employers know about the PUMP Act’s anti-retaliation provisions?
Employers may not discriminate or retaliate against employees who assert their rights as outlined in the PUMP Act, meaning they may not take adverse actions, such as firing, demoting or reducing the pay of employees who request lactation breaks or express milk at work.
How does the PUMP Act compare with the Colorado Workplace Accommodations for Nursing Mothers Act?
Colorado law requires public and private employers who have one or more employees to provide reasonable unpaid break time or permit an employee to use paid break time, meal time, or both, each day to allow the employee to express breast milk for her nursing child for up to two years after the child’s birth. In addition, employers must make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where an employee can express breast milk in privacy.
How should employers communicate this information to employees?
Employers should consider adopting a written policy that clearly establishes policies and procedures for employees requesting lactation breaks and outlines the legal requirements for the employer’s lactation space. Including information about the PUMP Act and the Colorado Workplace Accommodations for Nursing Mothers Act in their employee handbook is also recommended.
Employers may also want to provide training for managers to ensure they understand their employee’s rights under the Act and the employer’s responsibilities.
If you have additional questions about ensuring compliance with the PUMP Act in your workplace, please contact Liz Hartsel or another Fortis employment law team member.
