The United States Department of Labor (DOL) recently issued a Field Assistance Bulletin (found here) providing guidance to field staff regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). We previously summarized the requirements of the PUMP Act in our alert here.
The Field Assistance Bulletin provides detailed guidance on the PUMP Act and includes information and examples as to what employers must do to comply with the new law. A summary of the Bulletin is provided below:
- Break Time Requirements
- Employers must provide reasonable break time each time an employee needs to pump breast milk at work for one year after the child’s birth.
- The frequency, timing and duration of breaks will vary based on each individual’s situation.
- Employers cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need. Any agreed upon schedule may need to be adjusted if pumping needs change.
- Examples of Reasonable Break Times:
- Four 25-minute pump breaks each day after first returning to work; then two 25-minute pump breaks when the child is six months old.
- Two 30-minute breaks each day for an employee with a nine year old child.
- One 20-minute break for a part-time employee whose child is six months old.
- Break time to pump must be paid if otherwise required under the Fair Labor Standards Act (FLSA). Under the FLSA, short breaks of 20 minutes or less must be considered hours worked and paid.
- If employers provide paid break times and employees use that time to pump, employees must be compensated the same as other employees for the break time.
- Non-exempt employees must be completely relieved of duties or the time spent pumping is counted as hours worked. Example: An employee receives a work call while taking a pump break; the time she spent on the call must be counted as hours worked.
- Exempt employees’ salaries may not be reduced to reflect break time to pump. Example: An exempt administrative employee takes three pump breaks per day; the employer cannot deduct the time used for pump breaks from the employee’s salary.
- Space Requirements
- Employers must provide space for employees to pump at work that is (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time it is needed; and (4) not a bathroom.
- A temporary space is sufficient so long as it meets the above requirements.
- Privacy can be ensured by displaying a sign when the space is in use or providing a lock for the door.
- Teleworking employees receive the same protections – they must be free from employer observation while pumping.
- The space must contain a place for the employee to sit and a flat surface other than the floor on which to place the pump.
- Employees must also be able to safely store milk at work.
- Access to electricity in the pumping space, as well as sinks nearby, are ideal.
- Exemption for Small Employers if Undue Hardship: Undue hardship is determined on an individual basis. The employer bears the burden of proof. Considerations include the difficulty or expense of compliance in light of size, financial resources, and the nature and structure of the business.
- Exemption for Crew Members of Air Carriers
- Rail Carriers
- Motorcoach Services Operators
- Employee Protections
- Prohibited Retaliation. The PUMP Act prohibits retaliation for an employee who engages in protected activity, including making complaints to one’s supervisor, the employer or the DOL; requesting payment of wages; cooperating with a DOL investigation; exercising or attempting to exercise rights under the act; or testifying at trial. An example offered by the Bulletin is an employee running late from her lunch break after pumping, and her supervisor tells her she cannot use any more time for “personal stuff.” When the employee asked for another pump break, she is sent home for the rest of the day.
- Enforcement. An employee may file a complaint with the DOL or a private cause of action. In order to file a private suit for non-compliance, the employee must first notify her employer and allow the employer 10 days to come into compliance. However, the employee is not required to provide this notice if: (1) the worker has been fired for requesting break time or space; (2) the worker has been fired for opposing employer conduct related to pumping rights; or (3) where the employer has expressly refused to comply.
- Posting Requirements
- Employers are required to post and keep posted the published poster under the FLSA.
The takeaway for employers is that they should review their policies and practices regarding employees who need to pump breast milk while at work to ensure they are in compliance with the PUMP Act in order to avoid claims under this new law.
Ballard Spahr’s Labor and Employment Group frequently advises employers on compliance issues related to employment laws related to pregnancy, lactation and related issues. In addition, we frequently defend employers in matters brought under the FLSA.