New compliance alert: DOL begins PUMP Act enforcement on April 28

Heads up, HR: The U.S. Department of Labor (DOL) will begin enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) later this month.

The good news is, the agency just released two new tools to help employers comply with the legislation. Here’s what you need to know:

New PUMP Act legislation

Earlier this year, we told you that President Biden signed new legislation to expand workplace protections for pregnant and lactating employees.

The PUMP Act amends the Fair Labor Standards Act (FLSA) and a 2010 law – Break Time for Nursing Mothers – that requires employers to provide reasonable breaks and a private place, other than a bathroom, that can be used by nonexempt employees to express breast milk.

The PUMP Act expands those rights to include salaried and exempt workers who are lactating. The law also clarifies that the time spent pumping must be paid if an employee “is not completely relieved from duty during the entirety” of the break.

Companies with fewer than 50 employees can seek an exemption if they can show compliance would result in undue hardship.

The law provides certain exemptions to the airline industry. (See Section 18D (g) for details.)

Though the law took effect immediately, the enforcement provision included a 120-day delay, making the effective date for that provision April 28 — which is right around the corner.

DOL issues 2 new compliance tools

As the DOL gears up to begin enforcement later this month, the agency has released two new tools to help companies comply with the new law:

1. A frequently asked questions (FAQ) document, and
2. An updated fact sheet outlining employers’ legal obligations.

In the FAQ doc, you’ll find answers on a variety of topics, such as:

• How the PUMP Act work requirements will apply to small businesses
• Accommodations that must be provided to nursing employees
• How analogous state laws affect the new federal legislation
• How the DOL will consider relevant factors for purposes of the undue hardship exemption, and
• What type of space must be made available for nursing employees.

The fact sheet includes detailed info regarding:

• Covered employers and limited exemptions
• Break times to express milk
• Private spaces for breaks
• Compensation issues, and
• PUMP Act rights of remote workers.

It also includes several scenario-based examples, which help HR pros understand how employers’ legal obligations apply to specific situations in the workplace.

In the fact sheet, the DOL outlines a scenario that amounts to “unlawful retaliation under the FLSA” using this example:

• Leslie is a delivery truck driver for a department store and takes breaks to pump breast milk a couple of times each day. The supervisor complains that the breaks are interfering with the delivery schedule and moves Leslie to a lower-paying job as a result.

The potential cost of noncompliance

As of April 28, an employer who violates an employee’s right to reasonable break time and space to pump breast milk will be liable for appropriate legal or equitable remedies under the FLSA.

According to the fact sheet, remedies for violations of the reasonable break time and space requirements of the FLSA are limited to unpaid minimum or overtime wages.

But employees who face retaliation can seek additional remedies, “including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.”

Even more help

Looking for even more help? The U.S. Department of Health and Human Services Office on Women’s Health offers advice on how to support lactating employees.

For example, the guidance addresses a particularly challenging aspect: space accommodations for lactating employees.

Specifically, it says: “Employers covered under FLSA must provide a private space for lactation that is not a bathroom. ‘Private’ means that other people cannot see an employee while she is pumping breastmilk. Often this means putting a lock on the door, but some companies use mobile screens or tall cubicle areas. The space does not have to be a permanent, dedicated lactation room.”

The guidance then provides a link to lactation spaces in a variety of industries, including:

• Restaurants and hotels
• Retail and personal services
• Health care
• Education
• Manufacturing, factories and warehouses
• Transportation
• Public spaces
• Outdoor job sites, and
• Office jobs.