By Katy Reeve
The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act was enacted in 2022 with the goal of expanding rights for workers who need breaks to pump breast milk during work hours (pump breaks). Now that the PUMP Act has been on the books for several years, some early court decisions are beginning to clarify employer legal obligations under this Act, particularly in non-office settings. Employers should be aware of the PUMP Act’s requirements and how they apply in different work settings.
PUMP Act Overview
The PUMP Act expanded existing protections under the Fair Labor Standards Act to nearly all employees. Employers are now required to provide nursing workers with reasonable time and a private space to pump during work hours for up to one year after the child’s birth.
Let’s break down what that means:
- Reasonable break time. This is the amount of time the employee needs to pump, including time to get to and from the private space. This break is as frequent as the employee needs with the expectation that the frequency and duration of these breaks will vary from person to person and over the course of the year.
- Paid or unpaid break time. Whether the time is paid depends on if the employee does any work during the break. If the employee is completely relieved from work during the break, then they do not need to be paid for the time. However, if the employee does any work during that time, then this time is compensable.
- Private space is not a bathroom! The space must be 1) shielded from view, 2) free from any intrusion from coworkers and the public, and 3) available whenever the employee needs a pump break.
- Remote workers. Remote workers are also covered by the PUMP Act and are eligible for breaks to pump and have the right to a private space. The private space for remote workers means the employee must be free from observation by any employer-provided or required system, including cameras and conferencing platforms.
There are only a few exemptions from compliance requirements under the PUMP Act:
- Transportation employers. Air carriers are exempt from the PUMP Act’s requirements with respect to airline flight crew members (e.g., pilots and flight attendants). Additionally, certain employees of rail carriers and motorcoach services operators may be exempt if an employer can show that compliance would require significant expense or result in unsafe conditions. Employees may still be afforded certain protections under state or local laws, though.
- Small employers. Employers with fewer than 50 employees are not subject to the PUMP Act requirements if they can establish that accommodation would present an undue hardship. Undue hardship considers the difficulty or expense of complying due to the size, financial resources, nature, and structure of the business. Absent an undue hardship, the PUMP Act applies.
PUMP Act Litigation Takeaways
PUMP Act cases offer employers some helpful takeaways.
Work setting. Many cases progressing through the courts involve employees in non-office positions, including a police officer, cashier, restaurant employee, and maintenance worker. Employers in non-office settings are appearing in lawsuits more frequently, likely due at least in part to the PUMP Act’s specific private space requirements.
Adequate space. Courts have declined to dismiss cases in which employees have claimed that employers failed to provide an adequate space for pump breaks. Examples include:
- An employer would not provide the employee with a key to the private space and required the employee to get permission every time she needed access. The employer then moved the employee to another space and revoked access when someone else needed the space.
- The space provided was unsanitary (pet dander, mold, and garbage), unsafe (open containers of a toxic compound), and unsecured (no locks).
- A cashier was scheduled to work alone in a store. Without backup, she had nobody to cover the register during her pump breaks, which forced her to pump behind the register where she was visible to customers on several occasions.
Cases that did not proceed on the adequate space claim include claims based on the distance from the employee’s workspace being too far for the employee’s preference and two accidental intrusions out of more than 140 pumping sessions.
Retaliation. Employees can also bring retaliation claims under the PUMP Act. In Tennessee, a healthcare employee’s claim that she was fired for complaining about PUMP Act violations advanced to a jury, which awarded her more than $200,000 in damages.
Notice Requirement. Before suing for a violation of the PUMP Act’s space requirements, an employee must give their employer notice that the space is inadequate and then ten days for the employer to fix the issue.
The language of the law states, and courts have made it clear, that the notice requirement applies only to the private space element of the Act. Employees are not required to provide any notice of employer violations of the reasonable break time element.
With the PUMP Act being put to the test nationwide, courts will continue to offer insights into where employer compliance is falling short. Regardless of size or industry, every employer should have a plan to accommodate pumping employees.
If you have any questions about PUMP Act compliance or best practices, please contact any K|W|W attorney.
