Nursing mothers now have more workplace protections – and feds are serious about enforcing them

A new law extending workplace protections to millions of nursing mothers – and giving them a right to sue for violations – is here.

The federal Department of Labor (DOL) is serious about enforcing the law, and it has launched a campaign designed to ensure compliance by employers.

President Biden signed the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act on Dec. 29, 2022.

Before the law was passed, the Fair Labor Standards Act (FLSA) required employers to provide reasonable breaks and a private place – other than a bathroom – for employees to express breast milk. But the requirement applied only to nonexempt workers.

Expanded rights for nursing mothers

The PUMP Act expanded those protections to salaried and exempt workers, including teachers, managers, agricultural employees and home care workers. That means millions of previously unprotected workers are now covered, the DOL said.

Some employees of airlines, railroads and motorcoach carriers are exempt from nursing employee protections under federal law, although they may be entitled to protections under state or local laws.

Another limitation: Employers with fewer than 50 workers do not need to comply if doing so would impose an undue hardship. Whether an undue hardship exists is an individualized, fact-based inquiry that weighs the difficulty or expense of complying in light of the specific employer’s structure, size and financial resources. Another relevant consideration is the nature of the employer’s business.

Window of opportunity

Although the law took effect immediately upon its signing, the provision that gives nursing mothers the right to sue for monetary damages does not take effect until April 28.

That gives employers a window to make sure they are ready to comply with the law’s requirements in full.

Step one is to determine whether you are subject to the PUMP Act’s break time for nursing mothers provision.

For the majority of employers, the answer to that question is “yes.” In short, every employer covered by the FLSA must comply with the nursing mothers’ break time requirement. Air carriers are exempt, and there are exceptions that apply to employees of rail carriers and motor coach operators.

In addition, larger (50+ employees) employers have the undue hardship defense at their disposal, although the availability of that defense is no reason to avoid making an effort to provide a private space for lactating employees to express breast milk.

How to comply

So, you’re covered – now what?

If you are a covered employer, it is time to have a plan in place to provide a private, comfortable space for employees who need to express breast milk at work.

There is no need to set up a permanent, dedicated space before a nursing employee needs one. The statute specifically says providing such a space is required “each time such employee has a need to express the milk.”

However, employers need to be ready to respond quickly to provide such a space when the need arises. For that reason, it is best to prepare for the possible need ahead of time – before the space is needed.

The space must be private, meaning it is out of view of others. In addition, it cannot be a bathroom.

Another important point: Make sure employees are completely relieved of job duties while they are expressing breast milk. Although employers need not compensate nursing mothers for breaks taken to express breast milk, the time must be paid if the employees are not completely relieved of their job duties. In addition, the DOL advises that if an employer already provides its employees compensated breaks and a nursing mother uses that time to express breast milk, then that employee is to be compensated in the same way as others for that time.

Final note: The majority of states have enacted laws relating to breastfeeding in the workplace. If those laws provide a greater measure of protection for nursing mothers, they apply – and are not preempted by the new federal legislation.