The 2022 PUMP Act

Any person who has nursed an infant knows the time and energy that goes into breastfeeding. Working and nursing mothers need workplace accommodations to allow time, space, and grace to express milk during the workday. The federal government addressed that need in a new law.  President Biden recently signed into law the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”). This law fills in the gaps left by the 2010 Break Time for Nursing Mothers Act, which applies only to nonexempt employees.

Protections

Under the PUMP Act, certain employers must provide two accommodations to nursing mothers: (1) reasonable break time for the employee to express breastmilk for two years after the need to pump arises; and( 2) a private place to pump. The law notes that protections extend to employees who express milk after having a stillbirth or who provide breastmilk to a child the employee neither birthed nor has custody over. And, “reasonable” break time will also depend on the employee’s specific needs, as different mothers spend different amounts of time nursing. The law reiterates the requirement in the 2010 Act that the private pumping space cannot be a bathroom and goes on to state that the space must be both shielded from view and free from any intrusion by coworkers or the public. The time spent pumping is compensable unless the employee is completely relieved from duty for the entirety of the break time. So, the moms who have a private office where they can pump and continue to take calls at the same time will stay on the clock.  

Who Must Provide Accommodations

Most employers are covered under the PUMP Act. The only exception is those with fewer than 50 employees and who can show that compliance with the Act would cause an undue hardship. As under the Americans With Disabilities Act, proving an undue hardship is a heavy burden.  The employer must prove the requirements cause “significant difficulty or expense” considering the size, nature, financial resources, and structure of the employer’s business.

Recourse

An employee who notifies an employer of a lack of adequate accommodations may file suit after 10 calendar days of noncompliance. However, an employee may immediately file a lawsuit if an employer discharges the employee for her accommodations request or indicates its intention to not comply with the PUMP Act. The PUMP Act provides the same remedies available for other FLSA violations, including back wages, double damages for willful violations, and attorneys’ fees.

Best Practices

Consider whether a new policy or revisions to existing policies are needed to ensure employees are aware of both the options for nursing mothers and the prohibition against discrimination and retaliation against nursing mothers.

Further, cases under the 2010 Break Time for Nursing Mothers Act suggest some best practices for employers.

• Ensure there are no written or unwritten policies or practices that deny an employee any privileges because of breastfeeding. For example, in 2016 a female apprentice welder sued her employer because it disallowed her to work while breastfeeding, despite testing showing the welding shop was safe for lactating women. Even after allowing her to work, she was not given the same training opportunities as men in the same program. A court determined that she brought credible gender and pregnancy discrimination claims against her employer.

• Ensure an employee who is pumping is not terminated, denied assignments, or denied promotions due to lactation. For example, a nurse requested reasonable accommodations to pump after returning to work from her maternity leave. Her supervisor used that opportunity to terminate her, claiming she was unable to keep up with the demands of her position.

• Ensure an employee is not subject to sexual harassment due to lactation. For example, a female employee brought a case against her employer in 2016 after requesting an appropriate space to pump from her employer. The employer provided a lactation space with walls so thin that male coworkers could hear the female employee pumping, and the female employee could hear her male coworkers making comments about her lactation breaks and referencing her breasts. The female employee sued, and the court determined that her claims for discrimination were credible.