By Felice B. Ekelman, Amanda A. Simpson & Ya Xin Huang with Jackson Lewis P.C.
The Department of Labor (DOL) Wage and Hour Division (WHD) is in the process of publishing industry-specific guidance for compliance with the 2022 Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The DOL has published guidance for the restaurant and retail industry that includes a recorded webinar, presentation slides, and FAQs that provide examples tailored to the restaurant and retail industry.
PUMP Act Coverage
The PUMP Act extended employer obligations under the Fair Labor Standards Act (FLSA) to provide employees reasonable break time and private space to express breast milk for the employee’s nursing child, including non-exempt and exempt employees. The DOL explains, as an example, that an area manager for a multi-state chain of fast-food restaurants who is exempt from receiving overtime pay under the FLSA is entitled to breaks and a private location every time they need to pump for one year after the birth of their child.
Employers with fewer than 50 employees are exempt from the PUMP Act if they can demonstrate undue hardship. Employers with 50 or more employees do not qualify for this undue hardship exemption.
Frequency, Duration of Breaks
Employers must provide nursing employees with reasonable break time each time the employee needs to pump at work for one year after the child’s birth. The frequency and duration of breaks will vary and depend on the employee’s unique needs — including the timing of the breaks. For example, a sales associate may need to take four 25-minute breaks each day when she returns to work, but another employee who also needs to pump may require two 30-minute pump breaks. In both of these scenarios, the employer must provide the necessary break time and space to the employees.
Employers cannot hold time used to pump against employees when determining whether the employee has met a productivity measure or quota. Employers also cannot require employees to make up time the they used for pumping. Adding time to an employee’s schedule, to make up time, could be seen as prohibited retaliation under the FLSA. The DOL provides the example of a sales associate who is directed by the store manager to work additional hours to meet the sales quotas for the week or to make up for the time the sales associate spent pumping during the week. The DOL takes the position that this could be unlawful retaliation under the FLSA.
Employers must provide a space that is not a bathroom and is shielded from view and free from any intrusion from coworkers and the public and must be available each time the employee needs to pump. Restaurant and retail employers can temporarily convert an existing space, other than a bathroom, into a private space for pumping or make a private space available when necessary. The location must be functional as a space for pumping. Employers can add a table and chair and use dividers and signs to turn a storage room into a temporary space for pumping mothers. Alternatively, a manager’s office could also be temporarily used, as long as employees can block or turn off cameras and use a lock or a sign to prevent intrusion.
The Department of Health and Human Services’ Office on Women’s Health notes that companies can partner with neighboring businesses to share a space for pumping mothers’ use. For example, neighboring restaurants in a food court can provide their employees with shared space for pumping that is near the food court. Those who need to use the space receive a code to share the break room and pump in private areas separated by partitions, and the space should have tables, chairs, a cooler, and functional sinks.
Compensation of Breaks
Time for pump breaks may be unpaid unless otherwise required by federal, state, or local law. Some state pregnancy accommodation laws may require pump breaks to be paid. Employers should also pay careful attention to the FLSA’s standard requirements for counting and compensating hours worked. Employees must be paid for any time spent pumping when they are not fully relieved from duty or during an otherwise paid break. For example, if an employee pumps during a staff meeting to discuss upcoming menu specials and promotions, the employee must be paid for the time pumping because they were working. Furthermore, if an employer provides paid breaks, the employer must also pay employees who choose to pump during their paid breaks.
Additional Considerations for Restaurant, Retail Employers
Restaurant and retail employers are also required to provide lactation accommodations, absent undue hardship, under the new federal Pregnant Workers Fairness Act (PWFA). In the Equal Employment Opportunity Commission’s (EEOC) proposed regulations to implement the PWFA, lactation (including breastfeeding, pumping, and medical conditions related to lactation) is among the conditions the EEOC says will generally be covered by the PWFA. Many employers are already required to provide reasonable breaks and a private space for pumping under the PUMP Act. For all employers, whether they are covered by the PUMP Act or not, the EEOC views the PUMP Act requirements as potential reasonable accommodations under the PWFA. The EEOC also proposes additional reasonable accommodations related to lactation for employers covered by the PWFA. It proposes extending the period during which the employee will be provided breaks and access to a private space beyond what is required under the PUMP Act and providing a lactation area that is reasonably close to the employee’s work area, has electricity and appropriate seating, and is reasonably close to a sink and a refrigerator for storing milk, among other things. The EEOC is expected to release final regulations soon, which may provide additional clarification for employers.
In addition, employers should review and comply with relevant state and local wage and hour laws and pregnancy and lactation accommodation laws.
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