In light of the PUMP for Nursing Mothers Act, what accommodations should we be providing for nursing employees?
Quick Answer
Engage in an interactive process to find an appropriate pregnancy-related accommodation if one is needed, and provide a reasonable amount of time and a private workplace location (other than a bathroom) for employees who wish to express breast milk at work.
Legal Perspective
Shulman Rogers
Potomac, Maryland
The PUMP Act provides additional protections for nursing employees by requiring employers to provide reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work, say Meredith Campbell, Joy Einstein, and Alex Castelli, employment attorneys at Shulman Rogers.
Employers must provide nursing employees reasonable breaks each time they need to pump breast milk at work for one year after the child’s birth. The frequency, duration, and timing of breaks will vary depending on factors related to the nursing employee and the child.
An employee and employer may agree to a certain schedule based on the employee’s need to pump, but the employer cannot require the employee to follow a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Remote employees are also eligible to take pump breaks on the same basis as if they were working on-site.
A space temporarily created or converted is sufficient provided that it is:
- shielded from view
- free from intrusion from other employees and the public, and
- is available each time the employee needs to pump.
In addition, employers must ensure the employee’s privacy. The DOL suggests displaying a sign when the space is in use or providing a lock for the door. The space must contain a place for the employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees also must be able to safely store milk while at work, for example, in a cooler or refrigerator.
Some employers with fewer than 50 employees may be eligible for an exception if compliance with the PUMP Act would impose an undue hardship.
Relevant Case Law
EEOC v. Houston Funding II, Ltd
Ames v. Nationwide Mutual Insurance Co.
Hicks v. City of Tuscaloosa
HR Insight
Fountain House
New York, New York
We provide private rooms for nursing mothers to pump, says Linda Noskewicz, Head of Human Resources at Fountain House. These rooms include mini-refrigerators, a sink and soap, a table, and comfortable seating.
Miller's Health Systems
Warsaw, Indiana
The goal is to allow adequate time and privacy in a room in a separate section of the facility for the employee to pump without feeling pressured or embarrassed, advises Jennifer Gappa, VP of HR at Miller’s Health Systems.
Eagle Infrastructure Services
Longview, Texas
Any mother who is nursing and needs to pump is able to do so in the privacy of their own office with sufficient time to do so, says Jenny Lacy, Corporate Director of HR at Eagle Infrastructure Services. Cute signs are provided to prevent co-workers from disturbing the mother during a pumping session. Additionally, personal fridges are available in the office if they prefer to keep pumped milk out of the communal fridge.
The Cost of Noncompliance
DOL: Company pays $22K in back wages, damages for PUMP Act violations
Who was involved: Allegiance Behavioral Health Center of Plainview d/b/a Inspirations, a subsidiary of Allegiance Health Management Inc. based in Shreveport, Louisiana, and a lactating employee in Texas.
What happened: According to the DOL’s Wage and Hour Division, the company violated the FLSA’s nursing mothers provision by denying the employee adequate time and space to express milk. The employee had no choice but to express milk in a parking lot accessible to both her co-workers and the public. Faced with continuing that practice or leaving her employment, the employee quit her job, which amounted to a constructive discharge under the FLSA's anti-retaliation provisions.
Result: The company agreed to pay $22,000 in back wages and damages to the employee.
Info: Company to Pay $22K in Back Wages, Damages for Violating Anti-Retaliation Law in Nursing Mothers Case, 4/26/19.
Jury awards $3.8M to employee who faced retaliation after complaining about lack of proper lactation space
Who was involved: The City of Tucson in Arizona and a lactating paramedic.
What happened: The paramedic sued the city, alleging it violated Title VII and the FLSA by failing to provide an appropriate lactation room on a consistent basis and by retaliating against her after she complained. According to the paramedic, supervisors called her lactation schedule “excessive” and retaliated against her by forcing her to complete excessive drills; subjecting her to excessive inspections, asking her inappropriate questions, depriving her of vacation time and depriving her of specialty pay.
Result: An Arizona jury awarded $3.8 million to the worker.
Info: Jury verdict in Clark v. City of Tucson, 4/12/19.
Nursing employee refused to take business trip, got fired: Company paid $195K
Who was involved: VCNY Home and a lactating employee in New Jersey.
What happened: After the new mother returned to work, she claimed she was excluded from projects and meetings, subjected to inappropriate jokes and stripped of job responsibilities. She said she was ordered to take a two-week business trip abroad. She sought accommodation, explaining that she was breastfeeding her infant and could not travel. She provided a doctor’s note to support her request. The company fired her, saying she was unable or unwilling to perform an essential job function. The employee sued, alleging discrimination and retaliation in violation of state law.
Result: The company paid $195,000 to settle the case. In addition to the financial payout, it also agreed to:
- Review and revise its pregnancy leave and accommodation policies.
- Provide anti-discrimination training to HR employees who handle pregnancy and accommodation requests.
- Provide pregnancy-related anti-discrimination training to supervisors, managers and owners.
- Submit compliance reports to the state for three years regarding all pregnancy-related leave requests; pregnancy-related or breastfeeding-related accommodation requests; and pregnancy-related or breastfeeding-related complaints.
Info: Breastfeeding Mother Wins $195K Settlement from New Jersey-Based Manufacturer, 4/25/22.
Key Takeaways
- Employers must provide nursing employees with reasonable break times each time an employee needs to pump breast milk for one year after a child’s birth.
- The frequency, duration and timing of the breaks will vary depending on the needs of the nursing employee and the child as well as the location of the space. Simply put, employers and employees may agree to a general schedule based on anticipated needs, but an employer cannot require an employee to adhere to a fixed schedule that doesn’t meet the employee’s need for a break each time the employee needs to pump.
- Moreover, any agreed-upon schedule may need to be adjusted over time as a nursing employee’s pumping needs change.
- Nursing employees who work remotely are entitled to the same pump breaks as employees working on-site.
- If an employee is not completely relieved from duty during the entirety of the break, it must be paid.
- Short breaks, usually 20 minutes or less, provided by the employer must be counted as hours worked. If the employer provides paid breaks, and the nursing employee uses that time to pump, then the employee must be compensated in the same way that other employees are paid for break time.
- Employers do not have to permanently designate a space as a lactation room only.
- Restrooms are not permissible locations for pump breaks. Expressing breast milk in a bathroom raises health and safety concerns, which may include the risk of contracting bacteria in breast milk or breast pump equipment.
- Temporary spaces may be permissible if they ensure nursing employees are shielded from view, free from intrusion from co-workers and the public, and available each time it is needed by the employee.
- At a minimum, spaces must include a place for the employee to sit and a flat surface (other than a floor) where the pump can be placed. Ideal spaces also include electricity, which allows employees the option of using electric pumps rather than battery-operated devices, and sinks, where employees can wash their hands and clean pump attachments.
- In very limited circumstances, some employers may not have to provide accommodations that would cause undue hardship. In a Field Bulletin, the DOL warned that employers must be able to demonstrate “significant” difficulty or expense to be eligible for the exemption.
- State laws may provide additional protections for employees.
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