California has required all employers to provide lactation breaks (unless they can show that to do so would “seriously disrupt” their operations) since 2020. The federal government caught up late last year with the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

PUMP Act — The Basics

Effective December 29, 2022, the PUMP Act expands workplace protections for employees with a need to express breast milk. The Pump Act amends the Fair Labor Standards Act (FLSA), which required employers to provide lactating non-exempt employees with reasonable break time and a private location to express milk for one year following the birth of a child.

The previous law excluded most salaried employees, and the PUMP Act expands this right to cover all employees whether exempt or non-exempt. Now employers must provide all employees a reasonable break to express milk each time the employee has a need to express milk for one year after the child’s birth.

PUMP Act — The Nitty Gritty

• The law states, “time spent to express breast milk must be considered hours worked if the employee is also working.”
  • This means that for non-exempt employees, the break time may be unpaid, unless the employee expresses breast milk during an otherwise paid break period. Employers must be certain that non-exempt employees are completely relieved of their duties for the entire break period; otherwise, they must be paid for that time. So, if a nursing mother is doing any work during this “break,” she must be compensated
  • Exempt employees must be paid their full weekly salary as the law requires, whether or not they take breaks to express breast milk.

• The law also provides a measure of privacy for nursing mothers as covered employees must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”
  • If the space is not dedicated to the nursing employee’s use, it must be available when needed by the employee.
  • The Pump Act also protects remote workers. Workers who telework must be free from observation by any employer-provided or required video system, including computer camera, security camera, or web conferencing platform.

• The Pump Act exempts some smaller employers under certain circumstances. Employers with fewer than 50 employees may be exempt from compliance if they can establish that doing so would impose an undue hardship because of significant difficulty or expense.

• Starting in April 2023, employees who are denied breaks, not provided a qualifying space for expressing, or are not paid for the break as outlined in the Pump Act, may file a law suit since the Pump Act creates a private right of action. However, before filing suit, an affected employee must notify their employer of the alleged failure to provide a private area to pump. The employer then has 10 days to remedy the situation. The notification period is waived if the employee’s employment has been terminated for making the request or opposing an employer’s refusal to provide a place to express milk under the law, or if the employer indicated it will not provide a private place for the employee to do so.

• Certain industries are exempt from the Pump Act, like air and rail carrier crew members and motor coach operators. There is not a similar exemption for other transportation industry employers.

Many employers will be familiar with these obligations since a number of cities and states already have laws that protect workplace lactation accommodation rights. Employers must follow whichever law provides greater protections.

What is the Pregnant Worker Fairness Act?

The PWFA is modeled after the Americans with Disabilities Act (ADA) and is all about accommodations. The intent of the law is to fill the gap between Title VII and the ADA to ensure that pregnant workers are able to continue in their jobs with reasonable accommodations for physical or mental conditions related to pregnancy and childbirth.

It expands protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. This obligation is effective in less than two month, on June 27, 2023.

Like under the ADA, employers will be required to engage in an interactive process to provide a reasonable accommodation, so long as it does not impose an undue hardship on the employer.

The Pregnant Worker Fairness Act — Important Details

• The PWFA directs the Equal Employment Opportunity Commission (EEOC) to issue regulations to carry out the law. However, the EEOC has already provided some answers to frequently asked questions on the law, including outlining several examples of possible accommodations. The FAQ states that possible accommodations include: “the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.”
• Relief for private sector employees is the same as under Title VII of the Civil Rights Act of 1964, meaning that remedies include: reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorneys’ fees and costs. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities already have laws that provide accommodations for pregnant workers.

Key Takeaways & Recommendations for Employers

            For the PUMP Act:

1. Train HR, managers, supervisors and facilities on the update to the law, and remind them of the process for providing break time and private places to express breast milk.
2. Remember that PUMP Act does not preempt state law or municipal ordinances that provide greater protection than provided by the Act. Employers should determine which laws will apply in the jurisdictions where they have employees, update policies, and ensure HR, managers and supervisors are trained accordingly.
3. Be creative when determining private spaces for pumping (and remember that a bathroom is not sufficient). As long as the space is shielded from view and free from intrusion from coworkers and the public, a space created or converted temporarily into a space for expressing breast milk and made available when needed by a nursing mother is adequate. Privacy screens, curtains, signage, etc. can be used.
4. Be particularly careful to ensure that non-exempt employees taking breaks under the PUMP Act are compensated appropriately.

For the PWFA:

1. Review and update policies and handbooks where reasonable accommodations are discussed. HR, managers and supervisors must all be trained on the new accommodation obligations under the PWFA.
2. Like the PUMP Act, the PWFA does not preempt more generous state and local laws. Just like for the PUMP Act, employers should determine which laws will apply in the jurisdictions where they have employees; update policies, procedures, and forms accordingly; and ensure HR, managers and supervisors are trained.
3. Take this as an opportunity for refresher training on reasonable accommodations and how to properly engage in an interactive process, include special attention to the importance of documentation. HR and managers will all need education on PWFA compliance.