New Field Assistance Bulletin Provides Enforcement Support and Public Guidance on the Providing Urgent Maternal Protections for Nursing Mothers Act

On May 17, 2023, the U.S. Department of Labor Wage and Hour Division (“WHD”) published Field Assistance Bulletin No. 2023-02 (the “FAB”), which provides both enforcement support and public guidance regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP for Nursing Mothers Act”). The FAB supplements WHD’s prior publications regarding the PUMP for Nursing Mothers Act. 

As further discussed in our January article, the PUMP for Nursing Mothers Act was signed into law in December 2022 for the purpose of amending the Fair Labor Standards Act (“FLSA”) to extend additional accommodations to employees with a need to express breast milk at work and to provide legal remedy for aggrieved employees if their rights are violated.  On April 28, 2023, the enforcement provision of the PUMP for Nursing Mothers Act became effective, which now allows employees to seek legal remedy if they believe their employer has violated the PUMP for Nursing Mothers Act.  In addition to making employees aware of their rights under the PUMP for Nursing Mothers Act, the FAB assists employers in understanding their obligations under the PUMP for Nursing Mothers Act.  The FAB details a number of topics under the law, including break time requirements, compensation, space requirements, exemptions, employee protections, and employer posting requirements.

With respect to break time requirements, the FAB reiterates that an employee must be allowed a reasonable break each time the employee expresses breast milk at work for up to one year after the child’s birth.  Breaks and times may vary, and an employer cannot force an employee to maintain a certain schedule if that schedule does not meet the employee’s need for break time—even if that schedule is agreed upon in advance.

Regarding space requirements, the FAB reminds employers they must provide a space shielded from view, free from intrusion by both coworkers and the public, and available each time the nursing employee needs it to pump.  The space may not be a bathroom.  To ensure privacy, WHD suggests employers display a sign when the space is in use or provide a lock for the door.  Additionally, the FAB emphasizes the provided space must be functional as a room to express milk—meaning there is a flat surface, other than the floor, where the pump can be placed, as well as a place to safely store milk while the employee is at work.  WHD also recommends spaces have access to electricity and nearby sinks.

The FAB covers compensation, noting again that the PUMP for Nursing Mothers Act does not impose a requirement that employers compensate employees for break time needed to express breast milk unless otherwise required by federal, state, or local law.  However, if an employee is not completely relieved from duty for the duration of the break, the break is 20 minutes or less, or the employee chooses to pump during a paid break time, the employee must be compensated.  If an employee receives a salary, an employer may not reduce pay to reflect the break time.

As the FAB reiterates, most FLSA-eligible employees are protected under the PUMP for Nursing Mothers Act.  However, the law exempts employers with less than 50 employees where compliance with the PUMP for Nursing Mothers Act would cause undue hardship.  The FAB makes clear that an employer bears the burden of establishing undue hardship.  While WHD indicates it will evaluate each undue hardship claim on a case-by-case basis, it specifically indicates that employers will be exempt “only in limited circumstances.”  However, the FAB also notes special exemptions for crewmembers of air carriers, certain employees of rail carriers, and employees providing certain motor coach services.

The FAB explains to employees the possible remedies available to them under the PUMP for Nursing Mothers Act if an employer violates the law.  These remedies include everything from payment of lost wages to promotion to punitive damages where appropriate.  Remedies are also available to an employee if an employer discharges or discriminates against an employee who is exercising rights under the PUMP for Nursing Mothers Act.  In discussing enforcement, the FAB notes that employees are required to give an employer an opportunity to come into compliance with the law. However, this requirement only applies to an employer’s failure to provide a space to pump—not to an employer’s other obligations under the law.  Specifically, once an employee requests a space to pump, the employer has 10 days to provide that space before an employee can bring a lawsuit.  However, if the employer fires the employee related to their request or for opposing the employer’s violation, or where an employer indicates a refusal to comply, the 10-day notice is not required.

Finally, the FAB discusses posting requirements related to the PUMP for Nursing Mothers Act.  WHD reminds employers of the requirement to post a notice explaining FLSA rights to employees.  The FAB provides a link to WHD’s updated FLSA poster, which reflects the current pump at work requirements.

Employers should review the PUMP for Nursing Mothers Act, the FAB, and WHD’s prior publications to ensure they understand how best to comply with these new obligations. 

Sara A. McCue
Courtney E. Camenzind, Summer Associate