“And pump it (louder), pump it (louder), pump it (louder) . . ..” Now that I have you all singing the famous 2009 Black Eyed Peas song Pump It Harder (released the same year Jordan finished his freshman year of high school . . . let’s think about that for a minute), it is time to dive into the newest federal legislation on our KSB radar, the “Providing Urgent Maternal Protections for Nursing Mothers Act” or (shortened slightly but still a mouthful) the “PUMP for Nursing Mothers Act.” This legislation was signed into law by President Biden on December 29, 2022. The PUMP for Nursing Mothers Act expands on current legislation to provide workplace protections to breastfeeding employees. Presently, the FLSA requires employers to provide nursing mothers reasonable break time to express breast milk after the birth of a child for up to one year after childbirth. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk. Also, employers may not deny a covered employee a needed break to pump.
The PUMP for Nursing Mothers Act expands the FLSA requirement to cover salaried employees such as teachers who previously were exempt from these requirements. Additionally, the time an employee spends expressing breast milk must be considered hours worked if the employee is also working. Employees who use a break to pump are not required to be paid for that time. If an employer fails to comply, the employee can seek monetary remedies against the employer such as back wages, liquidated damages, and attorney’s fees.
Here are the most common compliance questions we receive from school districts:
Is a private bathroom a permissible location for the employee to pump?
Answer: No. Even if the bathroom is private, it does not comply with the requirements of the FLSA which explicitly provide the location must be “a place, other than a bathroom.”
Do we have to pay a staff member who uses break time to express breast milk?
Answer: No, if the employee is completely relieved from duty. If the employee is not completely relieved from duty, the employee must be paid. For example, if you have a paraprofessional who corrects papers while pumping breast milk, she must be compensated for the time spent pumping and doing the work at the same time.
What is a reasonable break time for an employee to express milk? I have a custodian who takes three 40 minute breaks a day to pump.
Answer: The DOL gives wide latitude for nursing mothers. Specifically, it states “the frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child.” We discourage schools from placing arbitrary time limits on pumping breaks for nursing mothers.
Is there still an exception for schools who employ less than 50 employees?
Answer: The FLSA carves out an exception for employers with less than 50 employees if such requirements would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” We recommend contacting your school attorney prior to making a decision to deny a pumping request.
If you have any questions about the FLSA or the PUMP for Nursing Mothers Act, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.