President Biden signed into law the “Providing Urgent Maternal Protections for Nursing Mothers Act” (“PUMP Act”) on December 29, 2022. The PUMP Act expands employer obligations under the Fair Labor Standards Act (FLSA) and addresses the needs of nursing women in the work force. It provides that for up to one year, an employer must allow an employee who is nursing a child to have reasonable break time to express breast milk.
A nursing employee who wants to express milk while at work has a right to do so in private. Pursuant to the Act, a nursing employee is entitled to a place that is shielded from view and free from intrusion by coworkers or the public to express milk. A bathroom is not considered a permissible location. Employers may create permanent, dedicated spaces for employees to express breast milk, but are not required to do so. If the space provided by the employer is not a dedicated space for use by nursing employees, in order to be compliant with the law, the private space must be made available when the employee needs it.
The frequency and duration of the breaks needed by an employee to express milk depend on factors related to the specific employee. There is no requirement that a nursing employee be paid for the time spent while on her break provided that she is completely relieved from her work duties during the break, otherwise she must be compensated as work time. In addition, if the employer provides compensated breaks for its employees, an employee who uses her break time to express milk must be compensated in the same way as other employees. Moreover, if the employee is at least partially working during her break, the time is considered paid working time for purposes of calculating minimum wage and overtime.
All employers covered by the FLSA must comply with the PUMP Act requirements except that an employer with fewer than fifty employees is not subject to the law’s break time requirement if it can demonstrate that compliance would impose an undue hardship causing significant difficulty or expense, which is often difficult to do.
While the PUMP Act is a federal law which provides certain protections and rights for nursing workers, employers need to also be aware that New York provides similar, and in some instances greater, protections under state law. For example, New York Labor Law Section 206-c also requires an employer to provide a nursing mother with break time to express breast milk at work. While the PUMP Act covers nursing employees for a period of one year, New York expands the period to three years. The Labor Law also requires that the space be in close proximity to the work area, and, at minimum, have a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. If the workplace has access to refrigeration, the employer must allow access to it for the purpose of storing the expressed milk. The state law applies to all public and private employers in New York State, regardless of the size or nature of their business.
Finally, it is a violation of both the federal and state law to discriminate against an employee for requesting or receiving break time to express breast milk.
For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at email@example.com.