This week, we’re going to take a look at the PUMP Act. This legislation was passed in 2022 and aims to address one of the most challenging aspects to returning to work after having a child, pumping. The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act was signed into law on December 29, 2022 by President Biden, making several important changes to the Break Time for Nursing Mothers law. Let’s dive in!
What is the Break Time for Nursing Mothers Law?
The "Break Time for Nursing Mothers", sometimes referred to as the "Nursing Mothers in the Workplace, law is a federal law enacted as part of the Patient Protection and Affordable Care Act (commonly referred to as the Affordable Care Act) in 2010. The Break Time for Nursing Mothers law requires employers to provide reasonable break time and a private, non-bathroom space for non-exempt (hourly) employees who are nursing to express breast milk for their infants during the workday. Here are the key provisions:
- Time for Expressing Milk: Employers must provide "reasonable" unpaid break time for an employee to express breast milk for up to one year after the child's birth.
- Private Location: Employers must provide a private space, other than a bathroom, for nursing mothers to express breast milk. This space should be shielded from view and free from intrusion by coworkers or the public.
- Frequency: Employers are required to provide breaks as often as the employee needs them to express milk, and the frequency may vary among individuals.
- Exemption: Small employers with fewer than 50 employees are exempt from these requirements if they can demonstrate that compliance would cause an undue hardship.
The law does not require a specific duration for breaks, as it depends on individual needs and the nature of the job. It also does not require that these breaks be paid. This law was recognized as an important step in supporting working mothers and ensuring they have the necessary accommodations when returning to work, but it was not without a few faults.
What are the issues with the Break Time for Nursing Mothers Law?
Since its passage, many other bills have been proposed aiming to address “loopholes” created by the original legislation. Under the original bill, protections only extended to hourly workers who qualified for overtime. This mean that workers who don't qualify for overtime or who are salaried were not covered. The bill also restricted any restitution workers could seek, should their employer decide to not adhere to the Act. Title VII of the Civil Rights Act does prohibits employers from firing, harassing, or retaliating against workers for breastfeeding or pumping at work, but a legal path forward was not established.
Because of these issues, legislation to expand the Break Time for Nursing Mothers law has been introduced many times since 2010. In 2011, the Breastfeeding Promotion Act was proposed. This bill aimed to amend the Civil Rights Act of 1964 to include lactation (i.e., breastfeeding or the expressing of milk from the breast) as protected conduct under the Act (specifically, creating an amendment known as the Pregnancy Discrimination Act). It also aimed to amend the Fair Labor Standards Act of 1938 to extend the requirement that certain employers provide reasonable break time for an employee to express breast milk for her nursing child to bona fide executive, administrative, or professional capacity employees or outside salesmen who are exempt from federal labor laws that limit the number of hours in a workweek.
Then, in 2013, 2015, and 2017, Congress proposed, but never passed the Supporting Working Moms Acts. These bills aimed to amend the Fair Labor Standards Act of 1938 to extend the requirement that certain employers provide reasonable break time for an employee to express breast milk for her nursing child to bona fide executive, administrative, or professional capacity employees or outside salesmen who are exempt from federal labor laws that limit the number of hours in a workweek. All of these bills failed. But, finally in 2022, a bill did pass. That bill is the PUMP Act.
What is the PUMP Act?
The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act is a bill passed by Congress on December 23 as part of a $1.7 trillion federal spending package. Now, people covered under the Break Time for Nursing Mothers Act has been expanded to also include salaried workers, a game changer for returning to work. As of the end of April 2023, employers are required to provide reasonable break time for workers to pump, the pumping space provided cannot be a bathroom, and these protections apply regardless of the employee’s gender.
Nursing guides tell people to expect, on average, to pump eight to 12 times in a 24-hour day, or every two to three hours for 15-20 minutes at a time. Most people will need two to four 15-20 minute breaks in an eight-hour workday to pump the necessary amount. The PUMP Act also clarifies that pumping time counts as time worked when calculating minimum wage and overtime if an employee is not completely relieved from their work duties during the pumping break.
The legislation allows employers with 50 or fewer employees to be exempt from these requirements if they can prove complying with the law would cause an “undue hardship” to their business. "Undue hardship" is defined as "significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business."
The bill also makes it possible for an employee to file a lawsuit against an employer that violates the law. A lawsuit can be filed for the following circumstances:
- For violations of the break time requirement
- If the employer has indicated it has no intention of providing private space for pumping
- If an employee has been fired for requesting break time or space
Employees can file a complaint with the U.S. Department of Labor Wage and Hour Division (WHD), contact the free helplines to understand their legal rights and options, or directly file a lawsuit against their employer.
Finally, there are special rules that apply to certain rail carrier and motorcoach employees, allowing the industries a three year implementation period instead of the 120 days all other covered industries were subjected to (which took effect April 28, 2023). Also, airline flight crewmembers (flight attendants and pilots) remain uncovered. If someone is an airline employee, but not a crewmember, they will be are covered the same as all other covered industries.
Cover Photo by Sarah Dorweiler on Unsplash
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