Department of Labor Issues Guidance for Employers on Pump Act


On December 29, 2022, the Emergency Maternal Protection Act for Breastfeeding Mothers (“PUMP”) was signed into law. PUMP further amends the Federal Fair Labor Standards Act (“FLSA”) by expanding protections for employees who need to express breast milk at work. PUMP expands available remedies for violations and expands employee compensation requirements. The U.S. Department of Labor’s Wage-Hours Division (“DOL”) recently issued guidance on PUMP requirements.

Overview of changes in PUMP

In 2010, the Patient Protection and Affordable Care Act amended Section 7 of the FLSA to include break time and nursing space requirements for employees who need to express breast milk at work. These break times and feeding space requirements are detailed below and remain virtually unchanged with the enactment of PUMP. However, PUMP has also amended the FLSA to extend reasonable break times and breastfeeding space protections for expressing breast milk in the workplace to an additional 9 million employees, and has so far made changes to the Affordable Care Act Amendment. It also includes FLSA exempt employees who were not covered.

In addition, PUMP amends the FLSA to give injured employees the right to private litigation, and if an employee is not completely relieved of their duties during the break, time spent pumping will be paid minimum wage and Clarified how overtime hours are counted.

break time and rewards

Employers must provide employees who need to express breast milk with “reasonable rest periods” “each time that employee needs to express” for up to one year after the birth of the child. it won’t work. DOL’s guidance on pumps clarifies: (i) Employers may not deny employees pump breaks. (ii) ‘Frequency, length and timing of breaks’ will depend on factors such as nursing staff and child needs, nursing space; (iii) Employers and employees may agree to a fixed schedule only if adherence to the schedule meets the employee’s needs. (iv) Employees working remotely can also take pump breaks as if they were working in the field.

Employers are not obligated to compensate employees for pump breaks “unless otherwise required by federal, state, or local ordinance.” Exempt employees, such as regular officers, clerical workers, and professional employees, must be compensated during pump breaks in accordance with FLSA’s pay scale requirements. Non-exempt employees are not entitled to compensation during pump breaks unless they are completely relieved of their duties during pump breaks and are otherwise required by applicable law to take paid breaks. If the pump break is interrupted by work, the time spent working will be compensated. For example, if a non-exempt employee receives a work-related call during their break, that time counts as working hours, DOL said.

Nursing space

Employers must provide employees who need to express milk in a non-toilet area that is shielded from view, free from intrusion from colleagues or the public, and accessible whenever milking is required. His DOL guidance on pumps details that designated locations must be “functional spaces for pumps” and must provide: (i) where nursing personnel sit; (ii) any flat surface other than the floor on which the pump is placed; (iii) Ability to store milk safely at work (e.g. refrigerator). Ideally, employers should also provide access to electricity so that employees can use electric pumps (which operate more efficiently than battery-powered pumps), and allow employees to wash their hands or use pump accessories. It also provides access to a sink so that you can clean it. There is no one-size-fits-all approach and employers should consider the number of nursing staff and their work schedules to determine if multiple spaces should be designated or created.

Exemption

There are some exceptions to these rest and nursing space requirements. Employers with fewer than 50 employees (regardless of their workplace location) may suffer “unreasonable difficulties” due to “substantial difficulties or costs” of compliance “from a scale or economic point of view”. Not subject to these requirements. The resources, nature and structure of the employer’s business. The DOL advises that small employers are “exempt only in limited circumstances.”

Crew members such as pilots and flight attendants who perform duties on board the aircraft during flight hours are also exempt from the rest period and nursing space requirements. Some employees of railroad companies and motor coach operators, who are currently exempt, will be entitled to PUMP protection from December 29, 2025.

available remedies

PUMP enactment gives employees the right to private action and seek all legal and equitable remedies available under the FLSA, including settlement of damages . According to the DOL, these remedies are available regardless of whether the employee has been retaliated against.

Before filing a civil lawsuit for failure to provide nursing space, an employee must first notify the employer of the need for space and give the employer ten days to comply, unless: I have. (i) exercising a right under the FLSA if the employee was terminated or opposing the employer’s conduct; or (ii) if the employer expresses refusal to comply. There is no notice requirement to complain to the Wage Hours Department or to sue to enforce reasonable break time requirements (not space requirements).

Notification/Posting Requirements

The Wage Hours Department has published an updated FLSA poster that reflects PUMP’s requirements. This can be used to meet FLSA notice and posting requirements.

state or local law

PUMP and DOL guidance expressly state that no provision of federal law supersedes state or local ordinances that provide greater protection to employees. For example, New York State recently clarified employer obligations and employee protections under the Lactating Mothers in the Workplace Act, which is set to go into effect on June 7, 2023. New York’s Lactating Mothers in the Workplace Act is in addition to New York City’s Breastfeeding Act. accommodation law. Click here for more information on these laws.

Take-out

Employers should evaluate current break-time practices and available breastfeeding spaces to ensure compliance with PUMP. Employers should keep these requirements in mind when communicating with employees about their anticipated break time needs. This includes things like how long it takes to provide a nursing space after a request (10 days) and how to handle multiple employee requests for a nursing space.



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