On December 29, 2022, President Biden signed into law the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act (“PUMP Act”) and the Pregnant Workers Fairness Act (“PWFA”) as part of the omnibus budget bill for fiscal year 2023. As breastfeeding is extremely common in the United States, employers should be aware of both laws and implement changes to the workspace if needed.

What is the PUMP Act?

The PUMP Act amends and expands the Break Time for Nursing Mothers Act (also known as the break time law) passed in 2010 as part of the Affordable Care Act. Specifically, the PUMP Act expands the number of employees who are entitled to receive break time to pump and a private place to pump at work. Under the amended law, nearly 9 million more employees, including teachers, registered nurses, and farmworkers now have the legal right to receive pumping breaks and a private space to pump at work.

How does the PUMP Act affect the workspace?

Under the Break Time for Nursing Mothers law, as updated by the PUMP Act, employers of ALL sizes are required to provide a reasonable amount of break time and a clean, private space (other than a bathroom) for lactating workers to express milk for up to one year following the birth of the employee’s child.

As with other breaks under the Fair Labor Standards Act (“FLSA”), the nursing employee must be completely removed from duty, or the time spent pumping must be counted as hours worked for the purposes of minimum wage and hour requirements. If the employer already provides paid break time and the employee chooses to pump during that time, the employee must be compensated in the same way that other employees are compensated for break time.

Private space must be shielded from view and free from intrusion from coworkers and the public. The employer must ensure the employee’s privacy. Some examples (for employees who work in the office) include displaying a sign while the room is in use or providing a door with a lock.

Remote employees must be free from view by any employer-provided or required video system such as a computer camera, security camera, or web conferencing platform.[1]

While covered by the PUMP Act, employers of less than 50 employees may be excused from complying with the law in the rare situation that providing the required break time and space imposes a significant difficulty or expense (an “undue hardship”) on the employer.

What happens if employers do not follow the PUMP Act?

If employers fail to abide by the break time requirement or fail to provide an employee with a private place to pump, employees must give the employer notice of the failure and ten (10) days to cure the failure.  The notice could be to a supervisor so all supervisors should be trained by the employer to provide such requests to management. If an employer refuses to provide the accommodation or states it will not do so, an employee can immediately file a lawsuit against the employer for violations of the PUMP Act. Additionally, if an employee has been fired for requesting break time or space to pump, the employee can file a lawsuit immediately. Employees are also able to file a complaint with the U.S. Department of Labor Wage and Hour Division, as is the case with other violations of the FLSA.

Employees whose rights have been violated under the PUMP Act may be entitled to reinstatement, promotion, and the payment of lost wages and equal amount as liquidated damages, compensatory damages, and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.

When does the PUMP Act go into effect?

The PUMP Act went into effect on December 29, 2022, when it was signed into law by President Biden. However, the enforcement provision of the PUMP Act, which grants employees the right to file a lawsuit against employers who fail to abide by the PUMP Act’s provisions, goes into effect on April 28, 2023.

What is the PWFA and what employers are covered?

The Pregnant Workers Fairness Act (“PWFA”) requires covered employers to provide reasonable accommodations to pregnant, postpartum, or lactating employees, unless providing such reasonable accommodations would constitute an undue hardship for the employer. Prior to the PWFA, employers were only required to provide accommodations for pregnant workers when accommodations were granted to other workers who were not pregnant. The PWFA, in essence, extends the requirements of the Americans with Disabilities Act (“ADA”) to pregnant, postpartum, or lactating employees. Importantly, the PWFA has changed existing federal law to provide that a pregnant, postpartum, or lactating employee does not need to have a pregnancy-related disability to receive accommodation.

All private employers who have fifteen (15) or more employees and government employers are covered by the PWFA.

What are some reasonable accommodations under the PWFA?

Examples of reasonable accommodations for pregnant, postpartum, or lactating employees may include the following:

– 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. [2]

What are employers required to do when an employee requests PWFA accommodation?

Employers must have a good-faith conversation with the employee who has requested accommodation (the “interactive process”). The conversation can occur by phone, email, or any other way that is conducive to the situation, but the employer must respond to an employee’s request for accommodation and start the interactive process quickly.

It is important to remember that an employer cannot force an employee to accept accommodation that an employee does not need or want or force an employee to take unpaid or paid leave.

When does the PWFA go into effect?

The PWFA goes into effect on June 27, 2023.

[1] Pump at Work Presentations under the Fair Labor Standards Act – Presentation; https://www.dol.gov/sites/dolgov/files/WHD/flsa/PUMP-ppt.pdf

[2] Equal Employment Opportunity Commission: “What You Should Know About the Pregnant Workers Fairness Act” https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

ABOUT THE AUTHOR: Korri D. Bryant is an Associate at Rapp & Krock, PC in the Litigation Group. Korri’s practice includes advising employers concerning employment activities and representing employers in employment disputes.

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