The United States Department of Labor (DOL) Wage and Hour Division recently issued Field Assistance Bulletin No. 2023-02 (FAB) to provide guidance to Wage and Hour Division (WHD) field staff regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and its enforcement, including new posting requirements for employers covered by the Fair Labor Standards Act (FLSA).
The PUMP Act requires FLSA-covered employers, with limited exception, to provide all nursing employees, exempt or non-exempt, with reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work for one year after the child’s birth. The FLSA provides an exemption for small employers if compliance would require an undue hardship and includes exemptions that affect certain employees of air carriers, rail carriers, and motorcoach services operators.[1] Importantly, FLSA-covered employers must update their FLSA Minimum Wage posters to reflect these pump at work obligations under the PUMP Act.
Employers can find an updated FLSA Minimum Wage poster (April 2023) here which meets the pump at work and FLSA posting requirements. Employers can download the April 2023 poster at no cost. Note that the previous versions of the FLSA poster, including the August 2016 version, no longer meet the posting requirements and should be replaced. FLSA-covered employers are required to post and keep posted a notice explaining the FLSA in conspicuous places in every establishment where such employees are employed. Electronic posting of the FLSA Minimum Wage poster is sufficient to meet the posting requirement only if (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer by electronic means, and (3) all employees have readily available access to electronic posting at all times.
The most current information about the pump at work provisions can be found on the DOL’s website. WHD also shares resources from other agencies on its pump at work portal page online, such as the Office on Women’s Health’s Supporting Nursing Moms at Work: Employer Solutions, to help employers implement sound lactation policies.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.
[1] Notably, even if an exemption under the FLSA applies, State and Local Law may still mandate this requirement. For example, New York State Labor Law Section 206-c requires all public and private employers, regardless of size, to provide break time to pump breast milk while at work in a private setting. Please consult with you Labor and Employment counsel to determine what, if any, State and Local law applies.