By Jordan Jeter
A recent federal law—the PUMP Act—expands the rights of employees for lactation breaks. Although there were prior protections for some employees under federal law, the PUMP Act amends the Fair Labor Standards Act (FLSA) and extends the right to express milk at work to nearly all workers covered by the FLSA. Unlike other laws, the PUMP Act applies regardless of whether the employee is exempt from minimum wage and overtime requirements. The only exceptions are certain employees of airlines, railroads, and motor coach carriers.
Under the PUMP Act, employers must provide reasonable break time and a private space—other than a bathroom—for lactating employees to express breast milk for a nursing child until that child is one year old. Employers must allow a reasonable break time each time an employee has a need to express milk. The frequency and duration will vary depending on factors specific to each employee, and there are no set limitations on the number or duration of those breaks.
Employers are not generally required to compensate nonexempt employees for reasonable break time unless otherwise required by state or municipal law. But an employee must be “completely relieved from duty” during the break or paid for the break time. Where employers otherwise provide paid rest breaks, employees using such time to express milk must be paid the same as other employees for that break time.
In describing the required space, the Act states only that it cannot be a bathroom, must be shielded from view, and must be free from intrusion from coworkers and the public. The Department of Labor (DOL) has explained that the location must be functional as a space to express breast milk; things that increase functionality include a place to sit, a surface on which to place the pump, and access to electricity. If it is not a dedicated space solely for expressing milk, the space must be available when needed by the employee.
The DOL further makes clear that the PUMP Act applies to remote workers. While employers do not have to provide a space inside a worker’s home, the employee must be free from any observation by an employer-provided or otherwise required video system.
Although the PUMP Act was effective immediately upon signing on December 29, 2022, the remedies for enforcement did not kick in until April 28, 2023. Employers violating the Act are now subject to a full range of damages, including payment of lost wages or additional liquidated or compensatory damages, make-whole relief for economic losses suffered, and even punitive damages where appropriate.
Fortunately, PUMP Act requirements should look familiar to Oregon and Washington employers who are already required to accommodate lactating employees. In fact, both states provide additional protection beyond what the PUMP Act requires. More specifically, lactation accommodations must be extended until the nursing child is 18 months old in Oregon and two years old in Washington. Where there are inconsistencies between the PUMP Act and state law, employers should comply with the law most favorable to the employee.
Employers should review their policies now and make any necessary updates to ensure compliance with the PUMP Act and broader state law protections. Employers with questions about how to accommodate individual employees in their workspace should contact their employment counsel.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.