Tag Archive for: lactation

DOL issues guidance regarding FLSA’s PUMP Act

The DOL has issued a Field Assistance Bulletin under FLSA’s PUMP Act. The PUMP Act is a federal law that applies in addition to any state laws. The PUMP Act requires workers be allowed reasonable breaks to express, for up to one year after the birth of a child, in a private space, not a bathroom. This Field Assistance Bulletin is in addition to the DOL’s Fact Sheet 73.

The Field Assistance Bulletin confirms that determining a “reasonable” amount of time to express is an individualized inquiry that will vary by employee and by workplace, it may also vary during the protected one year period in which the PUMP Act requires the break. To illustrate, the Field Assistance Bulletin says one woman (see example named “Irina”) may require 4 20-minute breaks at first then only 2 20-minute breaks after the baby is 6 months old.

Because the “pump break” (which is DOL’s phrasing) is required as “reasonable” in each person’s circumstances, an employer cannot require that the mother express only during scheduled breaks.

An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Additionally, any agreed-upon schedule may need to be adjusted over time if the nursing employee’s pumping needs change.

The Field Assistance Bulletin explains that, for non-exempt workers, the pump break must be paid if it is for 20 minutes or less. Additionally if the non-exempt employee is interrupted during an otherwise unpaid pump break, the entire break must be paid.

Julia is (a non-exempt employee who is) on a pump break when she receives a call on her work cell phone from a coworker who provides her with instructions regarding a work project. After she finishes the work call, Julia completes her pump break. Because Julia was not relieved from duty, the time she spent on the call must be counted as hours worked.

Pump breaks for exempt employees must be paid in the sense that they cannot trigger a reduction in the worker’s guaranteed salary.

Cameron is a salaried exempt administrative employee at an assisted living center who has a four-month-old child. Cameron takes three pump breaks a day. Cameron’s employer cannot deduct the time used for pump breaks from their salary

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Congress enhances laws protecting pregnant and nursing mothers at work

President Biden has signed into law the Consolidated Appropriations Act, which includes two enhancements to the protections applicable to pregnant and nursing mothers at work:

  • The Pregnant Workers Fairness Act (CAA Sec. 101-109) applies to employers of 15 or more, subject to some exceptions, and requires reasonable accommodations of pregnancy, even though a short-term condition that would not otherwise generally qualify under the ADA as a “disability,” and a two-way interactive process for considerations of such requests. It also protects such employees from retaliation and discrimination. This new law also prohibits employers from mandating that a pregnant worker absent a reasonable accommodation that has not been developed through the interactive process or mandating that the pregnant worker take leave as a reasonable accommodation over their objection.
  • The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act, CAA Div. KK, Sec. 102) requires workers be allowed reasonable breaks to express , for up to one year after the birth of a child, in a private space, not a bathroom.

The EEOC has issued information explaining the new Pregnant Workers Fairness Act here, and the DOL re the PUMP Act here.

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