Extracted from Law360
Effective Dec. 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act, amended the Fair Labor Standards Act to require covered employers to provide reasonable break time and a private space, other than a bathroom, where employees can express breast milk. Nearly two years later, we have noticed that employers continue to wrestle with compliance.
In this article, we provide actionable steps employers can take to comply with lactation-space requirements under the PUMP Act and related state laws.
Private Place, Other Than a Bathroom
The PUMP Act doesn't require employers to construct a permanent lactation room or other space where employees can express breast milk. Rather, the law states the space can't be a bathroom, and it must be "shielded from view and free from intrusion from coworkers and the public."
Beyond that, the text of the law provides scant details on how employers can comply with these space requirements.
In May 2023, the U.S. Department of Labor published a field assistance bulletin regarding the PUMP Act and has issued two fact sheets, one as recently as August 2024, about the FLSA's pump-at-work protections and lactation-space requirements, all of which are instructive for employers and employees alike.[1] The DOL also published an FAQ in December 2022.[2]
Employers have latitude to designate an array of suitable spaces that comply with the PUMP Act. For example, if space and resources permit, employers can create or modify existing spaces to establish a dedicated lactation room. Employers can also identify an office, closet, storage area, or screened-off or partitioned areas in larger spaces that meet the PUMP Act's requirements.
Some companies also make and sell lactation pods that provide a private space with amenities such as seating, lighting and outlets.
Free From Intrusion
The lactation space should lock from the inside or display signage indicating that it's in use so it's free from intrusion by the public or coworkers. Depending on the space's location and configuration, employers may need to install curtains or other barriers at the entrance to offer additional privacy when the door is opened.
The space should be out of view of surveillance, security or other cameras, or those devices should be blocked or turned off while the employee is expressing breast milk.
Notably, remote employees must be afforded the opportunity to pump in a space where they aren't visible through a computer camera, video conferencing application, or other surveillance or recording devices.
Functionality
The lactation space must be functional for expressing breast milk, meaning it should include an electrical outlet where a breast pump can be plugged in, a chair where the employee can sit, and a flat surface such as a desk, table or shelf where pumping equipment and other personal belongings can be placed.
While not required under the PUMP Act, for optimal functionality, the pumping space should be proximate to a sink with running water where employees can wash their hands or pump parts and near a refrigerator where expressed milk can be stored.
Available When Needed
When identifying lactation spaces, employers should consider how many employees will need to access the space at a given time. Larger employers may want to establish a dedicated lactation room configured with more than one private pumping station so several employees can use the space at once.
The space must be available each time an employee needs to express milk, so larger employers should make sure their spaces are adequate for the number of employees who may need to access them simultaneously.
Shared Spaces
When an employer's physical design and structure limit or restrict the ability to create an on-site lactation space, employers can partner with nearby businesses to share their lactation spaces, or multiple employers can designate a shared space. Partnerships can work well for employers located in shopping malls, airports and office buildings or complexes.
State Laws
In addition to the federal requirements under the PUMP Act, some states and localities have enacted laws requiring similar or more stringent lactation-space requirements. The PUMP Act does not preempt or preclude state and local laws that provide greater protections to employees, so employers will need to familiarize themselves with applicable state laws in the jurisdictions where they have employees.
Some state laws underscore that employers should make reasonable efforts to provide a lactation space that's clean and sanitary, well-lit, close to the employee's work area, and near clean running water or a refrigerator that can be used to store milk. Even when not required under state law, employers are advised to identify pumping spaces that have these attributes to increase functionality and protect themselves against potential legal claims.
Litigation Landscape
Since April 28, 2023, employees have been able to pursue legal and equitable remedies under the FLSA for PUMP Act violations. Available remedies for violations include employment reinstatement, promotion, payment of lost wages and equivalent liquidated damages, compensatory damages, "make-whole" relief, and punitive damages.
Employees have two avenues to pursue private litigation for violations of pumping-space requirements. An employee can file a private suit after notifying the employer of the need for a lactation space and giving the employer 10 days to comply with the request.
Employees aren't required to provide any notice to the employer if (1) the employee's employment was terminated for (a) requesting reasonable break time or space to express milk, or (b) for opposing the employer's conduct regarding FLSA pump-at-work rights; or (2) the employer has expressly declined to abide by the law's requirements.
Many of the lawsuits filed since 2023 alleging PUMP Act lactation-space violations advance similar contentions that employers failed to provide a pumping space free from intrusion and that's not a bathroom. The cases describe situations of employees having to pump in unclean storage rooms or stockrooms or spaces that didn't have sufficient protection from intrusion such as locks or signage.
The cases also present examples of employees having to pump in bathrooms, which is both unsanitary and contrary to the PUMP Act's express terms. Other allegations include lactation spaces being far from the employee's work area or employees needing to pump in their vehicles due to the employer's failure to provide a suitable pumping space.
Takeaways
The PUMP Act turns 2 years old in December.
Employers should ensure compliance with the law by responding to employee requests for time and space to pump breast milk at work. Employers without any nursing employees should consider how and where they would support an employee's request for a pumping space before receiving such a request.
Employees who work in certain industries such as agriculture, food services, retail and transportation may perform their job duties in areas that aren't equipped with existing spaces that comply with the PUMP Act, so employers in these sectors should be proactive in identifying a private, functional space for employees who may need it in the future.
All employers should review their written policies to assess whether they adequately and accurately address how employees can request time and space to pump. Training managers, supervisors and human resources professionals about the PUMP Act and similar state laws is critical for achieving and maintaining compliance.
[1] Field Assistance Bulletin No. 2023-02 (May 2023);Revised Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk (January 2023); Fact Sheet #73A: Space Requirements for Employees to Pump Breast Milk at Work under the FLSA (August 2024).
[2] Frequently Asked Questions – Pumping Breast Milk at Work (December 2022).