Q&A: Lactation breaks for nursing employees under the PUMP Act and PWFA
How frequently can a nursing mother pump under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act? I know the law states a “reasonable” amount of time, but how can employers ensure that employees are not taking too many breaks (for example, what if an employee needs to pump every 30 minutes or hour)?
The PUMP for Nursing Mothers Act (“PUMP Act”) require employers to provide reasonable break time for a covered employee to express breast milk for her nursing child for at least 1 year after the child’s birth.
You did not indicate whether such employees are exempt or non-exempt. Employers are not required, under the Fair Labor Standards Act (FLSA), to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide paid breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. For nonexempt employees, if extra time is needed because a mother is pumping or expressing milk, that extra time can be unpaid. However, if any work is performed by an employee while taking a break to pump, the entire time must be paid. The United States Department of Labor (DOL) encourages employers to permit nursing employees to make up unpaid break time. Though not required by law, it is encouraged to allow women to work a more flexible schedule and make up extra time needed by coming to work earlier, staying later, or taking a shorter meal break. Some companies do not track extra break time taken as long as an employee completes her job duties in a timely manner. Note, however, that exempt, salaried employees must continue to be paid their full weekly salaries even if no work is performed. In other words, employers cannot “dock” exempt employees for their break time. Nursing breaks should not be counted as Family and Medical Leave Act (FMLA) time or against an employee’s FMLA entitlement.
According to the DOL, the frequency of breaks needed to express breast milk varies, depending on factors such as the age of the baby, the number of feedings in the baby’s normal daily schedule, whether the baby is eating solid food, and other factors. As a general guideline, the DOL has stated that it expects that nursing mothers typically will need breaks to express milk two to three times during an 8-hour shift and that longer shifts will require additional breaks to express milk. However, this is only a guideline, not a time limitation. Reasonable break time for lactation must also include the time it takes to get to the lactation site; the time it takes to gather, set up, and clean a breast pump or other supplies; and the time to secure and store the milk. It is important to note that the burden of challenging how much time a nursing mother needs for such a purpose would be on the employer. More information about the Pump Act can be found on HR Hero Topics page.
The Pregnant Workers Fairness Act (PWFA) requires employers to engage in the interactive process and provide reasonable accommodations to employees and applicants with limitations resulting from pregnancy, childbirth, or related medical conditions, unless doing so would cause an undue hardship. To this end, the statute borrows definitions from the Americans with Disabilities Act (ADA), including the terms “essential function,” “reasonable accommodation,” and “undue hardship,” as well as adopting the same interactive process. The proposed regulations address these terms and an employer’s obligations with respect to each, but they also fill in some of the gaps left by the statute with respect to related issues. The phrase “pregnancy, childbirth, or related medical conditions” is defined broadly to include breastfeeding and pumping, among other conditions. An employee doesn’t have to show a limitation meets a specific level of severity to be covered under the PWFA.
There are a number of factors to consider in speaking with employees. Employers will want to ensure that they engage in the interactive process required by the PWFA. That can include asking if there are any issues with the current lactation room as temperature, noise level, and other factors that may be affecting the employee’s ability to successfully pump.
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