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    September 07, 2023

    The PUMP Act: Legislation for Working Mothers

    Carly Stein

    The Centers for Disease Control’s 2022 Breastfeeding Report Card indicates that breastfeeding rates for babies drop sharply from birth, and at six months only 24.9% of babies are receiving exclusively breastmilk. Furthermore, over half of mothers who breastfeed report stopping prior to their intended end date. While a variety of reasons contribute to this shortened breastfeeding duration, top among these included difficulties associated with pumping breastmilk. Seen as a step in the right direction for solving this problem, the Providing Urgent Maternal Protections for Nursing Mothers Act or “PUMP” for Nursing Mothers Act, passed by Congress in December of 2022, expands protections granted to nursing mothers in the workplace. The PUMP Act amends the Fair Labor Standards Act to provide nursing employees with reasonable break times and private spaces in which to express breast milk.

    The Act expands on the nursing protections originally afforded only to overtime eligible, hourly employees under the Patient Protection and Affordable Care Act. Under the PUMP Act, these protections have been extended to another nine million employees, regardless of overtime status. This expansion includes many female-dominated occupations previously not covered, such as nurses and teachers, as well as agricultural workers. The law also applies to teleworking employees who are being afforded the same protections as to privacy and time allotted for breaks to pump. It also does not preempt any state or local laws protecting breastfeeding mothers, although currently only thirty states have laws protecting breastfeeding mothers in the workplace.

    Rather than take a “one-size-fits-all” approach, this brief amendment requires employers to provide eligible employees with a “reasonable break time” to express breast milk for up to a year after the child’s birth. Expounding on this language, the U.S. Department of Labor (DOL) Wage and Hour Division released a Field Assistance Bulletin on May 17, 2023, which explained how the law should be applied in the workplace. The DOL considers the frequency,timing, and duration of the pump breaks as a function of the needs of the nursing employee and her child, without regard to the employer’s preferences. Accordingly, the employer cannot dictate a schedule to which the employee must adhere, and if the two agree on a schedule the employee may adjust it as her breastfeeding needs change. The Act does not require employees to be paid during pump breaks, but if the employee is not completely relieved from their work duties, the time must be considered hours worked. Furthermore, if the employee is normally granted paid breaks at work, these breaks can be used for pumping.

    In addition, the space provided for employees to pump breast milk must be shielded from view, free from intrusion from both coworkers and the public, available each time it is needed by the employee, and cannot be a bathroom. To ensure privacy, the employer may post a notice when the space is in use or provide a lock on the door to prevent others from entering. While the space must be functional for pumping, which according to the DOL requires a place for the pumping employee to sit, not on the floor, and a place to store breast milk, further functionality is not required by the Act. This oversight may result in employees being required to pump in a location that lacks the outlets necessary for many traditional electrical pumps or without sinks for the employee to wash pump equipment afterwards. While this expansion of protections for working mothers is a positive one, there are still a number of exceptions under the law which will leave many mothers unprotected. The PUMP Act does not apply to airline crew members, including flight attendants, even though according to the Women in Aviation Advisory Board March 2022 Report, almost 80% of flight attendants are women. Women in other transportation industries, including members of train crews, rail carrier employees, and motorcoach employees, will also not receive the protections of this law until December of 2025. In addition, in those railway industries, employers will not be required to make accommodations if they require a significant expense. The law explicitly includes removing seats from the carriers as a significant expense.

    Furthermore, while the law applies to all covered employees and employers, employers with less than fifty employees are not subject to the Act if doing so would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” The WHD will consider an employer’s alleged undue hardship on a case-by-case basis, but this presents a real possibility that smaller employers will be able to deny these protections to their nursing employees.

    Unlike the prior protections in 2010, the PUMP Act has more areas for legal recourse when an employee’s rights are violated. Employees may either file a complaint with the Wage and Hour Division of the DOL about any violation of the law or bring a private lawsuit to enforce the reasonable break time mandate of the law. If the employee wishes to file a private suit over the lack of space to pump, they must first provide the employer with at least ten days to become compliant after the initial request for space.

    While the protections of the PUMP Act are welcomed and long overdue, there remain many areas of improvement for women in the workplace. Employers wishing to retain working mothers should consider the requirements of this Act a floor, and not a ceiling, for assisting these employees in returning to work.

    Carly Stein

    Counsel, Seyfarth

    Carly Stein is an Assistant Professor of Instruction at the University of South Florida Muma College of Business where she teaches graduate level courses on business law. She is also of counsel Seyfarth Shaw LLP, helping clients with employment discrimination claims and internal investigations.

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