A few months ago, this blog looked at the impact of the Fair Labor Standards Act on remote workers, including new moms who are breastfeeding or expressing milk during the workday. Today, we’re going to look at a related but separate group: pumping moms working at the employer’s worksite. Whether an employee is or is not remote, she has certain rights under federal law. So, if you’re an employer seeking to ensure compliance or you’re a worker who has been mistreated regarding your pumping, it is well worth your while to contact an experienced Atlanta wage and hour lawyer to get answers to your questions.
Earlier this month, the U.S. Labor Department’s Wage and Hour Division (WHD) issued a field assistance bulletin on this topic. Field assistance bulletins don’t carry the force of law, but the courts may rely on them as a persuasive (but not precedential) authority.
That May 2023 bulletin followed in the wake of President Biden’s signing into law the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) in late December 2022.
The bulletin is very clear that employers must provide covered employees who are nursing with “reasonable break time each time such employee has need to pump breast milk at work for one year after the child’s birth.”
Employers with nursing employees can work with those employees to establish a schedule for the employee’s pumping breaks but, even if the employer and employee agree to a schedule, the employer may not “require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump.” So, you can craft a schedule, but it will be essential to retain a degree of flexibility to accommodate a nursing employee’s individual pumping needs, which may fluctuate over time.
Generally, employers are not required to compensate nursing mothers for their pumping breaks, but there are certain exceptions. One is if the employer provides paid breaks to all its workers and a nursing mother uses those paid breaks to pump. In that scenario, the breaks must be compensated.
What May — and May Not — Serve as a Location for Pumping Milk
The FLSA has already erected certain restrictions related to pumping locations. (Some of these requirements are the same ones that, as this blog reported last month, the state legislature is considering adding to Georgia law.) Under the FLSA, an employer cannot assign as its nursing employees’ designated pumping location a place that: (1) is a bathroom, (2) isn’t private (i.e., isn’t “shielded from view” or isn’t “free from intrusion from coworkers and the public,” or (3) isn’t always available any time a nursing employee needs to use it.
The designated pumping place must also be “functional” for that purpose. In other words, federal law demands that the space include, at the minimum, a place (other than the floor) for the mother to sit and a stable, flat space to set her pump.
As is true with many federally mandated workplace accommodation laws, there is an exception if providing a pumping space that meets all the requirements would impose an undue hardship on the employer. If there’s a legal dispute about an employer’s compliance with these requirements, the employer — and not the employee — bears the burden of proving undue hardship.
Pregnancy discrimination laws and protections for nursing mothers enshrined in the FLSA offer breastfeeding mothers important rights… and can inflict serious harm on non-compliant employers. Whether you’re an employer or a nursing worker, the Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert are here to provide you with the knowledgeable answers and helpful advice you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.