Update Applicable to:
On May 17, 2023, the Department of Labor (DOL) issued enforcement guidance on the “pump at work provisions” of the Fair Labor Standards Act (FLSA), as amended by the passage of the PUMP Act last December 2022.
What are the details?
The FAB expands on the lactation space requirement and notes that it must be a functional space. The DOL characterizes a functional space as follows:
“A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator.”
The DOL recommends that the space provide access to electricity, since it generally takes more time to use a battery-operated pump than an electric one. It also recommends that employers provide a location close to a sink to make it easier for employees to wash their hands and clean pump parts – all of which are part of the reasonable break time provided by the PUMP Act.
In the FAB, the DOL reminds employers that a one-size-fits all approach will not successfully accommodate all nursing employees. Rather, the frequency, duration, and timing of breaks under the PUMP Act will vary based on a multitude of factors unique to each employee and child.
The FAB explains that an employer and employee can agree to create a break schedule based on the nursing employee’s needs to pump but cautions that the schedule cannot be static – the schedule may need to be adjusted over time as the nursing employee’s needs change. Employees are entitled to reasonable break time each time there is a need to pump. The DOL also noted that employees working remotely or offsite are eligible to take lactation breaks on the same basis as those working onsite.
Under the Act, non-exempt employees are generally not entitled to compensation if they are completely relieved from duty during pumping breaks; however, the DOL guidance also states, consistent with the FLSA, that “short breaks, usually 20 minutes or less, provided by the employer must be counted as hours worked.” Furthermore, the guidance explains that if a non-exempt employee performs any work during the pumping break—for example, by taking a work-related call—then the employee must be compensated for that time.
As indicated in the DOL guidance, an FLSA poster updated in April 2023 to reflect the new pump-at-work provisions can be downloaded from the DOL’s website and should be posted in accordance with the FLSA’s posting requirements. Employers will want to replace the August 2016 version with the April 2023 version.
For more information, please see the links below:
DOL Guidance: Field Assistance Bulletin No. 2023-2 (FAB)
What do employers need to do?
Employers should review the above links and maintain regular communication with employees regarding their anticipated break time needs in order to adapt to any required changes. Especially in larger workplace settings, employers need to consider the location of the pumping space in relation to the employee’s workstation and how the distance will affect the length of the break time an employee may need. If multiple employees need access to the space, consider maintaining multiple available spaces to ensure a space is available each time it is needed. The guidance also provides that employers may offer one large space with privacy screens between employees so that multiple employees may use the space at the same time.
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