PUMP For Nursing Mothers Act Expands Federal Protections For Lactating Employees

On December 22, 2022, President Biden signed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law.  The PUMP Act moderately expands the federal protections for lactating employees in the workplace.  The PUMP Act went into effect on April 28, 2023.

What did Prior Federal Law Require?

Under prior federal law, employers were required to:

1. Provide a reasonable break time for an employee to express breast milk for the employee’s nursing child for one year after the child’s birth each time the employee has a need to express milk; and
2. Provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which the employee may use to express breast milk.

What is New Under the PUMP Act?

The PUMP Act expressly sets forth three circumstances under which an employer must compensate an employee for break time spent expressing breast milk.  Those are when:

• Required by a separate federal law, state law, or municipal ordinance;
• The employee is not completely relieved from duty during the entirety of the break time; or
• The employer provides other paid breaks to employees.

Employees need not complete any special procedure before bringing a private lawsuit to enforce the Act’s reasonable break time requirement or to file a complaint with the Department of Labor’s Wage and Hour Division regarding any violation of the PUMP Act.  However, before an employee may commence a private lawsuit for violation of the Act’s requirement to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public,” the employee must both:

1. Notify the employer of the failure to provide the place; and
2. Provide the employer with 10 days after such notification to come into compliance.

An employee may commence a private lawsuit for violation of the Act’s “place” requirement without notification if any of the following apply:

1. The employee has been discharged because the employee made a request for break time or a place to express milk or because the employee opposed any employer conduct related to the Act; or
2. The employer has indicated that the employer does not intend to provide a place to express breast milk.

The PUMP Act also modifies the consequences for employers who violate an employee’s right to reasonable break time and space to pump breast milk and/or who retaliate against an employee in violation of the Act.  Now, an employer who violates an employee’s right to reasonable break time and space to pump breast milk or who retaliates against an employee in violation of the Act will be liable for legal or equitable remedies.  Those remedies could be very broad and may include reinstatement, promotion, the payment of wages, lost wages, and punitive damages.

As with the prior law, there are limited exceptions for employers with less than 50 employees.

How does the PUMP Act Compare to California Law?

California law provides broad protections for lactating employees in the workplace.  Under California law, employers must, among other things:

• Provide employees a reasonable amount of break time to express breast milk for the employee’s infant child each time the employee has a need to express milk.
• Provide an employee with the use of a room or other location for the employee to express milk in private, that meets the following requirements:
  • Not be a bathroom;
  • Close proximity to the employee’s work area;
  • Shielded from view;
  • Free from intrusion while the employee is expressing milk;
  • Be safe, clean, and free of hazardous materials;
  • Contain a surface to place a breast pump and personal items;
  • Contain a place to sit; and
  • Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.
• Provide employees desiring to express breast milk access to a sink with running water, and either a refrigerator or another cooling device (g., employer-provided cooler) suitable for storing milk in close proximity to the employee’s workspace.
• Develop and implement a lactation accommodation policy that includes certain elements.

California law provides that the break time will, if possible, run concurrently with any break time already provided to the employee, and any break time for an employee that does not run concurrently with the break time already provided to the employee will be unpaid.

California law also provides limited exceptions for employers who employ fewer than 50 employees.  Such employers may be exempt from a specific requirement of the lactation laws if the employer can demonstrate that the requirement 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.

Similar to federal law, California law provides remedies for employees who believe employers denied reasonable break time or adequate space to express milk or retaliated against them.

There are two provisions of California lactation accommodation law that differ from federal law.  First, California law provides that an employer is not required to provide lactation break time if doing so would seriously disrupt the operations of the employer.  Since federal law may be more favorable to the employee, California schools should comply with the federal requirement.  Second, California law provides that if an employer cannot meet the break time or location requirements as requested by the employee, then the employer must provide a written response to the employee.  Since California law is more favorable to the employee in imposing this written notice requirement on employers, schools should comply with California law.  California schools should note, however, that any denial of an employee’s request for a lactation accommodation must be consistent with applicable law, which provides very limited, narrow bases for denial.