In March, 2010, as a part of the passage of the Affordable Care Act, the Fair Labor Standards Act or FLSA was amended to require most employers to provide nonexempt employees reasonable break time and a private space for a nursing mother to express breast milk for her nursing child for a period of one year from the baby’s birth date. Thus, the Wage and Hour Division of the federal Department of Labor enforces this new law.
Then, on December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 into law. This new law, federal PUMP for Nursing Mothers Act or PUMP Act extends to more nursing mothers the right to receive break time to pump and a private place to pump while at work.
Moreover, the law requires employers to provide a space that is free from public view and shielded from intrusion by other employees or the public. And, this private space CANNOT include the restroom.
All employers with 50 or more employees, covered by the FLSA must comply with the PUMP Act at work. Nearly all FLSA-covered employees now have the right to take needed time from work and access an appropriate space to express breast milk. In addition to the new federal law, any state law that provides such protections greater than that provided by the PUMP Act take precedence over this federal law.
This law covers all workers which includes part-time employees, staffing company employees and others where the employer provides the job and instruction or control over the work. Undue hardship exemptions are available for the small employer, but these cases are very rare, fact-specific and determined by the size of the company, financial resources, nature and structure of the company’s business.
The law also includes protections for employees who telework and must take pump breaks. These remote workers must also be free from observation by any employer-provided or required video system including computer camera, security camera, or web conferencing platform.
Under the FLSA, when an employee is using break time at home or teleworking, they must either be completely relieved of their duties; or paid for the break time. In other words, if an employer provides paid breaks, an employee who uses such break time to pump breast milk must be paid in the same way that other employees are paid for breaks.
If there are no employees with a need to express breast milk, then the employer would not have an obligation to provide such space.” HOWEVER, it is a best practice for employers to consider where they will make space available when the need arises.
In addition to the PUMP Act, there are other federal and in some cases state laws that affect pregnant, postpartum and pumping employees. They include:
- The Family and Medical Leave Act which provides eligible Pregnant employees job-protected leave for prenatal care or when a pregnant worker is unable to work because of the pregnancy.
- The Pregnant Workers Fairness Act which requires covered employers to provide reasonable accommodation to a workers’ known limitations related to pregnancy, childbirth, or related medical conditions.
- And lastly, Title Vll of the Civil Rights Act prohibits discrimination and harassment based on pregnancy, childbirth or related medical conditions in any aspect of employment. Maybe have these words appear when he is talking
Beginning April 28, 2023, an employer who violates an employee’s right to reasonable break time and space to pump breast milk will be liable for appropriate legal or equitable remedies under the FLSA. These remedies may include employment, reinstatement, promotion, and the payment of wages lost plus, an additional equal amount as liquidated damages, compensatory damages and make-whole relief which can include punitive damages where appropriate. These remedies are available regardless of whether the employee has also experienced retaliation.
As one example, a fast- food franchise in Delaware suffered damages and consequences of violation under Title Vll of the 1964 Civil Rights Act when it required its employee to pump in a single stall bathroom at the restaurant. After a few weeks of tying up the restroom, the employer required her to pump in the manager’s office which was equipped with a camera and accessible to co-workers.
In this case, the jury found in the complainant’s favor and awarded her $ 25,000.00 in compensatory damages and $ 1.5 million in punitive damages.
So, what are the key take aways?
1. Ensure that arrangements for a private space to express breast milk is either available or can quickly be made available.
2. Provide the necessary break time
3. Educate all employees on the company’s commitment to abide by the law related to lactation breaks.
4. Ensure that all managers/supervisors or decision-makers are fully aware of this new law and its requirements.
And, should you have need to review or discuss specific situations, don’t hesitate to contact your local Express Employment Professionals office.
Until next time, this is Russ Moen for Express Pro Talks.