Final week, the U.S. Division of Labor issued a Area Help Bulletin to its workers on how one can implement the PUMP for Nursing Moms Act, which was signed into regulation on the finish of 2022 and is presently in impact.
It is all the time good to know upfront how the federal government intends to implement these legal guidelines, so right here is my abstract of the Bulletin in “FAQ” format.
Is not this outdated information?
Sure and no. The Nursing Moms Act been the regulation since 2010, however it utilized solely to staff who have been non-exempt underneath the Truthful Labor Requirements Act. The PUMP Act just isn’t radically completely different, however it applies to many exempt staff and has a number of different tweaks.
Each legal guidelines require employers to offer nursing staff with break time to specific milk, and a clear and personal place by which to do it. The duty is in impact for one yr after the beginning of the newborn.
Below the NMA, the break time was unpaid. Below the PUMP Act, it is nonetheless unpaid — in concept. Extra on that shortly.
Additionally, underneath the NMA, if the employer failed or refused to conform, the worker’s solely recourse was to file an administrative grievance with the DOL. (Some staff efficiently sued their employers in court docket underneath Title VII, contending that lactation was a “pregnancy-related situation.”) Below the PUMP Act, staff can go on to court docket and sue for violations of the PUMP Act. They do not should shoehorn their claims into Title VII. However I think that the majority plaintiffs will now sue underneath each legal guidelines.
How a lot pumping time does an employer have to permit?
As a lot as the worker wants. In the event you’ve ever had a child, that the necessity is frequent at first, and tapers off because the child will get older. The Bulletin provides the instance of an worker who wants 4 25-minute breaks per shift initially, later lowering to 2 25-minute breaks per shift. Along with the maturity of the newborn, the DOL says that the employer’s lactation set-up may have an effect on the size or frequency of the breaks wanted. However, in case there’s any doubt: “An employer might not deny a coated worker a wanted break to pump.”
The DOL says that the employer and worker can conform to a schedule for pump breaks, however even then the employer should make exceptions as the worker’s wants require.
We all know that the pumping space needs to be non-public and clear and not a rest room! Are there any new necessities underneath the PUMP Act?
Probably not. The world needs to be “shielded from view” (that’s, non-public), “free from intrusion from coworkers and the general public” (that’s, non-public), obtainable “every time it’s wanted by the worker,” and “not a rest room.” A short lived pump space is ok so long as it meets these necessities. The DOL does not require it, however I believe it will be a good suggestion to have a door that locks.
Though these necessities aren’t new, there are new office circumstances that have been both uncommon or nonexistent in 2010. For instance, the DOL says that an worker who works remotely shouldn’t be topic to pc surveillance throughout nursing breaks. If a distant employee is on a videoconference, she must be allowed to show off her digicam whereas she is nursing her child or expressing milk.
So far as the pumping house is worried, the DOL says that the world ought to have electrical energy if attainable, a spot for the worker to sit down, and a flat floor (not a flooring!) on which she will put her pump. There also needs to be a approach for the milk to be safely saved — for instance, a fridge, an insulated container, or a cooler.
Though it does not should be within the lactation room, the DOL recommends having a sink with working water and cleaning soap close by in order that the worker can clear up afterward.
Employers aren’t required to have a completely designated house for lactation breaks. Massive employers with a gentle inhabitants of nursing staff might wish to try this, however smaller employers — or employers with solely an occasional nursing worker — can improvise as wanted.
What has modified in regards to the pay for pumping breaks?
Quite a bit, primarily as a result of the PUMP Act applies to many FLSA-exempt staff in addition to non-exempt. When solely non-exempt staff had the appropriate to lactation breaks, the time could possibly be unpaid as a result of non-exempt staff usually receives a commission just for time they’re working. (That is an oversimplification and never a complete abstract of FLSA obligations.)
The DOL Bulletin clarifies that if the break time would usually be paid by the employer, and if the worker chooses to make use of that point for a pumping break, then she needs to be paid for that point. Additionally, if the worker just isn’t utterly relieved of obligation throughout the break — for instance, if she has to take a work-related name whereas on lactation break — then she needs to be paid for the time. The DOL appears to be taking the place that any pumping break of 20 minutes or much less should be paid: “Brief breaks, often 20 minutes or much less, . . . should be counted as hours labored.”
If the worker qualifies for one of many FLSA exemptions that require her to be paid on a “wage foundation,” that means she will get the identical pay every workweek “whatever the amount of labor carried out” (with restricted exceptions), then the pump breaks should be paid. At all times. In different phrases, the employer cannot “dock” this kind of exempt worker for pump break time even when completely no work is carried out throughout the break.
The “white-collar exemptions” underneath the FLSA (govt, administrative, and {most professional}) require that the worker be paid on a wage foundation, as does the surface gross sales exemption.
Are any employers exempt from this regulation?
Sure, however do not get excited. An employer with fewer than 50 staff is exempt if offering pumping breaks can be an “undue hardship.” The burden of proof is on the employer. And, “[b]ecause the regulation requires solely house and time for unpaid breaks for one yr after a baby’s beginning, and the employer should have the ability to show ‘important’ issue or expense, employers shall be exempt solely in restricted circumstances.”
How about staff?
Crew members of airline carriers aren’t entitled to lactation breaks, however different airline staff are. Sure staff of rail carriers and motor coach companies operators is not going to be entitled to lactation breaks till December 29, 2025. Even then, underneath sure circumstances, the employer might not have to offer the breaks. (Extra particulars can be found within the Bulletin.)
Does the PUMP Act have a no-retaliation provision?
You needed to ask? Based on the DOL, PUMP-protected exercise contains making an inside grievance or a grievance to the DOL’s Wage Hour Division, asking for cost of wages, “consulting with WHD workers or cooperating with a WHD investigation,” asking for a lactation break or a personal space by which to pump, and testifying at a trial. If an worker suffers any adversarial employment motion for partaking in any of those actions, then the employer can be answerable for retaliation.
Is there a posting requirement?
You betcha! The DOL up to date its FLSA poster final month to incorporate the PUMP Act. The DOL recommends that employers substitute their present FLSA posters with this one. (A bigger model can be obtainable.)
Posting electronically is ok, too, if
(1) all of the employer’s staff completely work remotely,
(2) all staff typically obtain data from the employer by digital means, and
(3) all staff have available entry to digital posting always.
Bulletin, p. 8 (emphasis added).
Come to consider it, perhaps you’d higher use the paper poster. Or digital plus paper.
Is there extra in regards to the PUMP Act within the DOL Bulletin?
Sure, fairly a bit extra, and this submit has already gone on far too lengthy. So please do learn the entire Bulletin. It is solely 9 pages, and it is a straightforward learn.
