The US Department of Labor (DOL) has issued a Field Assistance Bulletin (“FAB”) concerning the proper implementation of the new Providing Urgent Maternal Protections for Nursing Mothers Act, the so-called PUMP Act.  Some of the provisions of the FAB address compensation and these are important for employers to understand and comply with.

The FAB mandates that employers give a “reasonable” amount of time every time the worker must pump breast milk for a year after the baby’s birth.  The amount of time, the number of times and the number of minutes for each pump break will vary depending on individual circumstances.  The employer may not set or mandate a fixed schedule that does not adapt to possibly changing needs of the employee.

The employer must adapt the pump times to each unique situation.  Employers cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need. Any agreed upon schedule may need to be adjusted if pumping needs change.  For example, the mother may need four breaks after first returning to work and then as the child gets older maybe two breaks.

This pumping time is compensable if it would be compensable under the FLSA, Under that statute (and many State laws) a break of twenty minutes or less is compensable.  Thus, if the employee uses twenty minutes or less to pump on a break, that worker must be treated as if they were taking a “usual” break.  

Of course, it is a truism that a non-exempt worker must be free of all duties when on a break of whatever length (e.g., twenty-five minutes) and if interrupted for a work reason, that time becomes working time.  Nor can exempt worker salaries be reduced nor can they suffer any deductions for a time spent in a pump break.  Significantly, employees who work from home or remotely must be afforded the same allowances and protections. 

There are exemptions for “undue hardship,” which will be determined on a case-by case basis.  The factors to be assessed are expense, ostensible difficulty with compliance and the type of business involved.  I believe that such exemptions will be difficult for an employer to prove.

The Takeaway

Employers must be aware of the new law and must ensure compliance. I daresay that this will be one of the things on DOL Investigator checklists (along with the usual exemption and other working time issues). It is essential to draft and implement a policy disseminated to all workers (e.g., Employee Handbook) to evidence to the DOL that the employer is in compliance.  

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