As previously discussed here, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP”) was signed into law on December 29, 2022. PUMP further amends the federal Fair Labor Standards Act (“FLSA”) by extending protections for employees who need to express breast milk at work and broadens the available remedies for violations.
PUMP’s protections have been available to most non-exempt employees since 2010, when the Patient Protection and Affordable Care Act (the “ACA”) amended Section 7 of the FLSA, governing overtime compensation. Because the ACA amended the overtime provisions of the FLSA, employees exempt from those provisions, such as agricultural workers, were also exempt from PUMP’s protections. Now, with the inclusion of Section 218d of the FLSA, PUMP extends its protections to most other exempt employees, including agricultural workers.
The U.S. Department of Labor has provided additional guidance for employers that employ agricultural workers, which can be accessed here. Employers employing agricultural workers must revisit their policies for nursing workers to the extent they have not already done so and ensure that they comply with the following:
- Afford workers reasonable break times each time the worker needs to pump at work (depending on the worker’s needs), for up to one year after their child’s birth.
- Afford workers a pumping space (other than a restroom) shielded from view, free from intrusion from coworkers and the public, and that may be used to pump breast milk. According to the DOL guidance, an employer would comply with PUMP if they set up portable pump stations near toilet and hand washing facilities designated for other farm workers to hand harvest crops that is shielded from view and is free from intrusion (such as a self-closing door that locks from the inside), and the worker is permitted to bring a personal cooler with her to safely store her breast milk. Guidance indicates, however, that if more workers require a space to pump at work, the employer may need to provide multiple portable pump stations.
- Ensure that all workers (particularly non-exempt workers) are properly compensated for pump breaks if (i) paid breaks are required by federal, state, or local law; (ii) the worker is not completely relieved from duty (time spent pumping must be counted as hours worked for the purposes of minimum wage and overtime if workers are not completely relieved of duties); and (iii) other workers are compensated for similar break times. For example, if an agricultural worker is paid hourly and her employer provides all workers with two paid 15-minute rest breaks each day, then the nursing worker may choose to use both paid 15-minute breaks to pump breast milk. If the worker needs additional breaks to pump, the additional break time does not have to be paid as long as the worker does not perform any work during the breaks and other workers who take additional breaks are treated similarly.
- Prevent violations of the reasonable break time and space requirements, as well as discrimination or retaliation against an employee who complains about violations of PUMP, as this will subject employers to various legal and equitable remedies, such as liquidated and punitive damages. The DOL provides the following example: An employee has a job hand harvesting certain crops and she takes breaks to pump breast milk twice a day. A supervisor complains that the breaks are interfering with her productivity and moves the employee to a lower-paying job as a result. As such, the employee has experienced unlawful retaliation under the FLSA.
For a detailed explanation of PUMP’s protections and available remedies, please refer here and the DOL’s May 17, 2023 guidance here. Employers should be mindful that state and local laws may afford greater protections, such as paid breaks and broader employee eligibility.