Department of Labor Releases Guidance on Protections for Employees Under the PUMP Act
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The United States Department of Labor Wage and Hour Division has recently provided guidance to employers regarding protections to employees who require lactation breaks at work. Field Assistance Bulletin 2023-02 clarifies several federal nursing rules stated in the Fair Labor Standards Act (FLSA), as amended by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
Lactation Breaks- Frequency
The guidance states that an employee is entitled to a break each time that employee must express breast milk during work (regardless of an employer’s existing break time policy) for up to one year following the birth of a child. Even if an employer and an employee agree to a schedule of break time for such purposes, that schedule is subject to change as an employee’s break needs change. The guidance also states that an employee is entitled to breaks to express breast milk when teleworking on the same terms as if she was in the office.
Lactation Breaks- Compensation
Lactation accommodation breaks need not be paid unless other employees who take similar-length breaks are also provided paid rest breaks. If an employee is required to work in any capacity during a lactation break, that employee must be paid her regular rate. In the case of exempt, salaried employees, a lactation break is not grounds to reduce payment.
Lactation Breaks- Required Infrastructure
The FLSA also restates the space requirements for lactation accommodation. An acceptable lactation location may not be a bathroom and must have all the following qualities:
- It must be shielded from view. Shielding an employee from view can be done in both the physical workspace (such as a sign or lock on a door) and the virtual workspace (such as allowing an employee to turn off their computer camera during pumping).
- It must be free from intrusion (during pumping time) from other employees or guests;
- It must be available each time it is needed; and
- It must be practical as a lactation space, and should provide most (if not all) of the following:
- A place for the employee to sit
- A flat surface to place belongings
- Running water
- Electricity
- A place to store breast milk (such as a refrigerator)
Lactation Breaks- Notice and Retaliation
Finally, the guidance provides an explanation of the reporting and retaliation components of the FLSA/PUMP Act law. Employers may not retaliate against an employee for inquiring into their rights under federal law, using the lactation accommodation under federal law, or filing a complaint with the Wage and Hour Division regarding a potential violation of federal law. Retaliation can be something as obvious as termination/demotion or it can be something less apparent such as requiring the employee to make up time spent taking breaks.
Employers are required to post the FLSA requirements regarding lactation accommodations in a conspicuous location that is frequented by employees (such as a breakroom). Employers may provide electronic-only notice of FLSA requirements in the following circumstance:
- All of the employees are remote;
- It is the usual course of business for employees to receive compliance notices electronically; and
- All employees always have access to the required posting.
Lactation Breaks- Exceptions
The guidance affords some flexibility to employers in regard to compliance with the regulations. Employers can designate vacant spaces as lactation rooms (provided they follow the other requirements) and may erect partitions within rooms to shield employees without needing to dedicate an entire room to it.
Th guidance provides several limited exemptions to the lactation requirements, including one for a small employer (under 50 employees) to whom the accommodations would provide an undue hardship. Employers must affirmatively show that providing the accommodations mandated by the FLSA and the PUMP Act places undue hardship on the operation of the business.
For Further Information
You can read the entire DOL Field Bulletin HERE.
The Department of Labor has also updated the minimum wage poster to reflect some these new changes to the FLSA. Employers should replace their current Minimum Wage Poster with the updated one. The updated poster can be found HERE.
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Heather Reynolds, ESQ CCO - Administrative Officer |
Michael Bivona Compliance Paralegal |