The Pump Act Update: What Employers Need to Know To Ensure they are Complying With the New Protections for Lactating Mothers Effective April 28, 2023

By Katie Zorc, Esq. and Holly Marie Wilson, Esq.

How a parent elects to feed their child is a personal choice. But with the American Academy of Pediatrics and U.S. Dietary Guidelines recommending a baby be exclusively fed breastmilk for the first six months to one year+ of their life, some lactating mothers have been adjusting their work schedules to make it happen. 

While regulations have been in place since 2010 to accommodate lactation in the workplace, certain limitations in the language of the law prevented its widespread application.

On March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) amended portions of the Fair Labor Standards Act (FLSA), requiring certain employers to provide lactating mothers with a reasonable break time to express breast milk within the first year after the birth of their child. The law requires employers to provide eligible employees with a “reasonable break time.” This includes providing “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 

Because of the location of the law within the statutory scheme of the FLSA, it arguably did not apply to employees who were not entitled to overtime, creating confusion as to its application and employee eligibility. 

To clarify and correct this confusion, on Dec. 29, 2022, with bipartisan support, the Providing Urgent Maternal Protections (aka “PUMP”) for Nursing Mothers Act was signed. It builds upon prior legislation to expand these protections to an estimated nine million lactating mothers who wish to express breastmilk at work by using a breast pump.

The law became effective at signing. However, critical remedies did not become available until April 28, 2023. These remedies include enforcement provisions so eligible employees may sue for violations of the law. For example, employers who violate the break time requirement or provide no qualifying place for an employee to pump may be sued directly by their employee. The same protection may apply if an employee is terminated for pursuing their right to pump. 

There is a notice requirement. Employees must notify their employer of their request to pump and the employer has ten (10) days from this notice to comply. However, employers may wish to proactively develop policies and designate breastfeeding locations before this notice, as a best practice to help avoid any potential confusion or resultant litigation. 

When developing such policies, an employer should also consider the fact that federal law is not a lactating mother’s sole protection. Every state, the District of Columbia, Puerto Rico, and the Virgin Islands all have their own, unique laws permitting breastfeeding, including at work and in places of public accommodation (aka in restaurants, retail stores, or other facilities that the public may enter), so these employers should take note of their patron’s rights as well. 

Finally, employers should consider the possibility of the risks of overlapping claims, as employees may bring multiple claims of state or federal sex or pregnancy discrimination in addition to claims under the PUMP Act for intruding on these rights. 

If you would like to consult regarding developing your compliant policy, or regarding any related legal matter, please feel free to call upon one of our experts in Reminger’s Employment Law Practice Group.