2022 PUMP Act expands lactation protections to exempt employees
Any person who has nursed an infant knows the time and energy that goes into breastfeeding. Working and nursing mothers need workplace accommodations to allow time, space, and grace to express milk during the workday. The federal government addresses that need in a new law. President Joe Biden recently signed the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The law fills in the gaps left by the 2010 Break Time for Nursing Mothers Act. The 2010 law applied only to nonexempt employees, leaving exempt employees with no protections, until now.
PUMP up the protections
Under the PUMP Act, certain employers must provide two accommodations to nursing mothers: (1) reasonable break time to express breastmilk for two years after the need to pump arises and (2) a private place to pump. The law notes that protections extend to employees who express milk after having a stillbirth or who provide breastmilk to a child the employee neither birthed nor has custody over. And “reasonable” break time will also depend on the employee’s specific needs, as different mothers spend different amounts of time nursing.
The law reiterates the requirement in the 2010 Act that the private pumping space cannot be a bathroom and goes on to state that the space must be both shielded from view and free from any intrusion by coworkers or the public. The time spent pumping is compensable unless the employee is completely relieved from duty for the entirety of the break. So the moms who have a private office where they can pump and continue to take calls at the same time will stay on the clock.
Who must provide accommodations?
Most employers are covered under the PUMP Act. The only exceptions are those with fewer than 50 employees and those that can show compliance with the Act would cause an undue hardship.
As under the Americans with Disabilities Act (ADA), proving and undue hardship is a heavy burden. The employer must prove the requirements cause “significant difficulty or expense” considering the size, nature, financial resources, and structure of its business.
Recourse for lack of accommodations
Beginning on April 28, 2023, an employee who notifies an employer of a lack of adequate accommodations may file suit after 10 calendar days of noncompliance. They may immediately file a lawsuit, however, if an employer discharges them for their accommodations request or indicates its intention to not comply with the PUMP Act.
The Act provides the same remedies available for other Fair Labor Standards Act (FLSA) violations, including back wages, double damages for willful violations, and attorneys’ fees.
Potential pitfalls for employers
Although the 2022 Pump Act hasn’t yet been enforced against employers, the 2010 Break Time for Nursing Mothers Act suggests some best practices for employers.
- Ensure there are no written or unwritten policies or practices that deny an employee any privileges because of breastfeeding. For example, in 2016, a female apprentice welder sued her employer because it disallowed her to work while breastfeeding, despite testing showing the welding shop was safe for lactating women. Even after allowing her to work, she wasn’t given the same training opportunities as men in the same program. A court determined she filed credible gender and pregnancy discrimination claims against her employer.
- Ensure an employee who is pumping isn’t terminated, denied assignments, or denied promotions because of lactation. For example, a nurse requested reasonable accommodations to pump after returning to work from her maternity leave. Her supervisor used the opportunity to terminate her, claiming she was unable to keep up with the demands of her position.
- Ensure an employee isn’t subject to sexual harassment because of lactation. For example, a female employee filed a case against her employer in 2016 after requesting an appropriate space to pump. The employer provided a lactation space with walls so thin that male coworkers could hear her pumping, and she could hear her male coworkers making comments about her lactation breaks and referencing her breasts. She sued, and the court determined her discrimination claims were credible.
Time to get ready
Now is the time to consider revisions to existing policies or to draft a new policy to ensure employees are both aware of the options for nursing mothers and the prohibition on discrimination and retaliation against nursing mothers.
