Further clarification and guidance was recently released regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (“the PUMP Act”), signed into law on December 29, 2022. The PUMP Act amended the Fair Labor Standards Act (“FLSA”) to extend reasonable break time and space protections to pump breast milk at work to as many as 9 million more employees who were not previously covered, including remote workers. The previous provision under the FLSA only existed for “exempt” workers, or those exempt from overtime. This right is available for up to one year after the child’s birth. The PUMP Act additionally extends available remedies for violation of any provision of the pump at work requirements.
Under the PUMP Act, an employer may not deny a covered employee a needed break to pump. Factors such as the frequency, duration, and timing of the breaks are dependent on the nursing child and mother and will vary situationally. An employee and employer may agree to a certain schedule based on the nursing-employee’s need to pump, but an employer cannot require said nursing employee to adhere to the schedule if pumping needs change. Furthermore, under the PUMP Act employers must provide a pumping location, that is not a bathroom, that is shielded from view, free from intrusion from coworkers and the public, and available each time it is needed by the employee. A space temporarily created or converted into a space for pumping or made available when needed by the nursing employee is acceptable so long as the previously listed requirements are met. As previously mentioned, these requirements also apply to remote workers. For example, if they are required to be on screen or monitored throughout the workday, the PUMP Act allows for cameras to be covered or monitoring to cease.
There are few exemptions under the PUMP Act. Certain small employers, 50 employees or less, can claim an exemption if they can demonstrate compliance would require an undue hardship. Crew members of air carriers, certain members of train crews, and employees of motorcoach services operators are also exempt given the nature of their working environments.
Starting April 28, 2023, employers who violate 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. Remedies may include employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violation, and punitive damages where appropriate. While this does not change the existing California laws regarding nursing employees, it does give more clarity to “reasonable accommodations.”
In addition to the PUMP Act, the Pregnant Workers Fairness Act (PWFA) is a new federal law effective June 27, 2023, protecting pregnant workers. The law requires that covered employers, employers with 15 or more employees, provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer “undue hardship.” Such accommodations include the ability to sit or drink water; receive closer parking; flexible hours; receive additional break time to use the bathroom, eat and rest; and be excused from activities that are not safe for pregnancy. California employers should not have any changes to make; the PWFA does not replace federal, state or local laws that are more protective of pregnant workers and in California laws regarding pregnant workers are more protective.
