Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 17, 2023, the U.S. Department of Labor (DOL) Wage and Hour Division issued Field Assistance Bulletin No. 2023-2 (FAB) to provide guidance to its field staff on the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and its enforcement. The PUMP Act expands the Fair Labor Standards Act (FLSA) to provide additional workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space, other than a bathroom, to express breast milk.
While the FAB reiterates information the DOL previously made available about the PUMP Act on its website, it also adds information about how the DOL views the law and how the agency may enforce it.
Break Time Requirements
In the FAB, the DOL reminds employers that a one-size-fits all approach will not successfully accommodate all nursing employees. Rather, the frequency, duration, and timing of breaks under the PUMP Act will vary based on a multitude of factors unique to each employee and child. Additionally, factors such as the location of the required private space and the specific pumping set-up can affect the time needed by the employee to express breast milk.
The FAB explains that an employer and employee can agree to create a break schedule based on the nursing employee’s needs to pump but cautions that the schedule cannot be static – the schedule may need to be adjusted over time as the nursing employee’s needs change. Employees are entitled to reasonable break time each time there is a need to pump. The DOL also noted that employees working remotely or offsite are eligible to take lactation breaks on the same basis as those working onsite.
Lactation Space Requirements
The FAB recognizes each employer will address lactation space requirements differently. Employers must ensure the nursing employee is provided privacy while expressing milk and suggests the use of locking doors for a private room or signage advising the space is in use. The bulletin also notes that the use of partitions or privacy screens can satisfy the requirements.
Although the law requires only that employers provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk,” the FAB expands on that requirement and notes that it must be a functional space. The DOL characterizes a functional space as follows:
A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.
The DOL recommends that the space provide access to electricity, since it generally takes more time to use a battery-operated pump than an electric one. It also recommends that employers provide a location close to a sink to make it easier for employees to wash their hands and clean pump parts – all of which are part of the reasonable break time provided by the PUMP Act.
The DOL also updated its Minimum Wage Poster on employees’ rights under the FLSA to include information on employees’ rights under the PUMP Act. Employers will want to replace the August 2016 version with the April 2023 version.
As the DOL reminds employers, posting the required poster only electronically may be sufficient, if all the company’s employees work remotely, all employees customarily receive information from the employer by electronic means, and all employees and have readily available access to the posting at all times.1