On May 17, 2023, the United States Department of Labor (DOL) Wage & Hour Division issued a Field Assistance Bulletin (“the Bulletin”) providing guidance to its field staff regarding enforcement of the newly-enacted Providing Urgent Maternal Protections for Nursing Mothers Act (“the PUMP Act”).
The PUMP Act, signed into law by President Biden on December 29, 2022, significantly expands the existing protections and accommodations for nursing workers set forth under the Fair Labor Standards Act (FLSA). The Bulletin, issued just weeks after the PUMP Act’s enhanced remedies became effective, sets forth important information for employers and signals how the DOL intends to enforce the Act. In addition to other guidance, the Bulletin clarifies the break time, pump space, and posting requirements under the PUMP Act.
Break Time Requirements
The Bulletin emphasizes that what constitutes as “reasonable break time” under the PUMP Act is not universal. Rather, the frequency, duration, and timing of “reasonable” breaks will vary depending on factors related to the nursing employee, the child, and the pump set up. While an employer and nursing employee can agree to a regular nursing schedule, the schedule must allow a break each time the employee needs to pump. Further, the agreed-upon schedule may need to be adjusted over time if the nursing employee’s pumping needs to change.
The Bulletin also advises that the PUMP Act’s “reasonable break time” requirement applies equally to remote and telework employees.
Space Requirements
The Bulletin clarifies the type of space an employer is required to provide for a nursing employee and notes that approaches may vary. The DOL’s guidance stresses that the two main requirements of a permissible pumping space are privacy and functionality.
Employers must ensure the nursing employee’s privacy, for example, by displaying a sign on the door or providing a locked area. Moreover, the nursing employee must be free from other forms of employer surveillance, including computer cameras, security cameras, etc. To meet the functionality requirement, the space must contain a place for the nursing employee to sit, and it should ideally have access to electricity for use of an electric breast pump. The space should also have a sink nearby, so the nursing employee can wash their hands and clean pump attachments.
The Bulletin also specifically reiterates the FLSA rule that a bathroom is not an acceptable space for pumping due to health, safety, and hygiene concerns.
Posting Requirements
The Bulletin reminds employers that, in April 2023, the DOL’s Wage and Hour Division published an updated FLSA Poster that may be used to meet the FLSA’s posting requirements. The poster incorporates the changes required under the PUMP Act and is available for download at no cost.
Conclusion
The Bulletin emphasizes the DOL’s commitment to enforcing the PUMP Act. As such, we recommend that employers review their current policies for nursing employees to ensure they are in compliance with the PUMP Act and related DOL guidance, as well as state and local laws on the topic.
