PUMP Act effective April 28: How to prepare

The PUMP Act, enacted as part of the Consolidated Appropriations Act, 2023, extends FLSA-protected unpaid lactation breaks to nursing mothers who are exempt employees. The law becomes effective April 28.

The Department of Labor has already revised Fact Sheet #73 to account for this change. It’s also created some new resources ahead of the law’s effective date.

However, even with those resources available, some employers may have a bit of confusion about adapting to these new rules. So let’s dive in and see what to make of them.

A lot stays the same

The Affordable Care Act amended the FLSA to require employers to allow nursing mothers who are nonexempt to take unpaid breaks to express breast milk whenever they need to for one year after the birth of their child. The PUMP Act extends lactation breaks to exempt employees, but changes little else.

New FAQs reinforce employers’ responsibilities:

  • All employers are covered. Exception: Employers with fewer than 50 employees that experience hardship may be excused from complying.
  • The space provided can’t be a bathroom and must be shielded from view and free from intrusion by co-workers or the public. On the other hand, the space need not be permanent.
  • State laws providing greater protection override the FLSA.
  • Lactation breaks are unpaid, unless employers have a paid-break policy or employees aren’t completely relieved of their duties while they’re taking their lactation breaks.

The DOL hosted a webinar on the PUMP Act, which you can access here.

But some things are new

PUMP-act-450x350px-3According to the fact sheet, employees who work from home are entitled to lactation breaks. In addition, the PUMP Act contains an anti-retaliation provision. While you’re obviously off the hook for providing a private space to your WFH employees, those who turn off their webcams or walk away from their desks can’t be disciplined.

The PUMP Act also increases penalties for violations.

And there’s one fuzzy issue

It’s not clear from the updated fact sheet or the FAQs how you’re supposed to treat this break time for exempt employees. This may yet be another example of Congress not understanding the payroll rules. Exempts’ pay usually can’t be reduced for unpaid break times; they must receive a guaranteed weekly salary in any week they do any work.

An example provided in the fact sheet is fine as far as it goes, but you can’t rely on a fact sheet in court.

The example covers teachers, who are generally considered exempt employees: A third-grade teacher chooses to grade papers and complete student records while pumping breast milk. She must be paid for this time because she wasn’t completely relieved of her duties.

We suggest getting an opinion from your legal counsel on this issue.

Preparing for April 28

Use this checklist to ensure you’re compliant with the law:

✓ Your space is a private, dedicated space that’s not a restroom. It could even be a storage or supply room. Key: There’s a lock on the door.

✓ When assessing your space, consider the following as necessities, rather than amenities (they may be required under state law): an electrical outlet, close proximity to a sink with soap and paper towels, and a communal refrigerator to store expressed milk.

✓ Train managers to allow employees as many lactation breaks as necessary during the day, to not require them to work during this time, and to not retaliate against those who take lactation breaks.