Train Managers as PUMP Act Enforcement and PWFA Effective Dates Approach

​Managers need to know what to do if an employee alleges that their employer isn't complying with the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act or if an employee seeks an accommodation under the Pregnant Workers Fairness Act (PWFA). The PUMP Act gives employers a 10-day "cure period," which they shouldn't squander. And the PWFA's requirements, although similar to the Americans with Disabilities Act's (ADA), have some differences.

The PUMP Act largely took effect Dec. 29, 2022, but changes to remedies will take effect April 28, 2023. The PWFA takes effect June 27.

PUMP Act Compliance

Management training is crucial because the PUMP Act requires employees to notify their employer of the failure to comply with the law and to give a 10-day period for the employer to rectify problems, said Catherine Cano, an attorney with Jackson Lewis in Omaha, Neb.

The PUMP Act expands the right of nursing mothers to take breaks and have a private place to express breast milk during the workday, said Stacy Hickox, an attorney with Kalijarvi, Chuzi, Newman & Fitch in Washington, D.C. Before the PUMP Act amended the Fair Labor Standards Act, this right was limited under federal law to nonexempt workers. Now exempt workers—including salaried workers with duties that don't entitle them to overtime pay, such as nurses and teachers—have the right to express breast milk in a private place during the first year of their baby's life.

Employers must provide all employees with a reasonable break each time they need to express milk, noted Ben Ho, an attorney with Baker McKenzie in San Francisco.

There is no maximum number of required breaks, so employees are entitled to take as many as are necessary, said Mark Phillis, an attorney with Littler in Pittsburgh.

"Without the appropriate policies and practices in place, an employer could inadvertently mismanage the overlap of required breaks under the PUMP Act and applicable state and local law," Ho said.

The private place to express breast milk must be shielded from view, not be a bathroom and be free from intrusion from co-workers and the public.

"The PUMP Act also protects remote workers," Ho noted. Covered workers who telework must be free from observation by any employer-provided or required video system, including computer camera, security camera or web conferencing platform.

Under existing law, lactation breaks for nonexempt employees may be unpaid, except: 1) if the nursing employee is not completely relieved from duty, 2) if employers pay co-workers for similar breaks or 3) when breast milk is expressed during paid breaks. State or local laws may be more stringent and require employers to pay nonexempt employees for lactation break time.

Exempt employees must be paid their full weekly salary, regardless of whether they take breaks to express breast milk.

Employers with fewer than 50 employees may be exempt from compliance if they can establish that doing so would impose an undue hardship, Ho added.

The PUMP Act's protections do not apply to crewmembers of air carriers.

As of April 28, employees who are denied breaks, not provided a qualifying space for expressing breast milk or aren't paid for the breaks as required by the PUMP Act may sue. They may either bring a private right of action against an employer or file a complaint with the U.S. Department of Labor's Wage and Hour Division.

But before suing, an affected employee must notify the employer of the alleged failure to provide a private area to pump. The employer then has 10 days to remedy the situation.

"The notification period is waived if the employee's employment has been terminated for making the request or opposing an employer's refusal to provide a place to express milk under the law or if the employer indicated it will not provide a private place for the employee to do so," Ho said.

Cano said employers should be creative about providing private spaces for breaks, especially if they have multiple employees who need breaks at the same facility.

As long as the space is shielded from view and free from intrusion from co-workers and the public, an area converted temporarily into a space for expressing breast milk and made available when needed by a nursing parent is adequate, Ho said. He added that privacy screens, curtains and signage may be used.

[SHRM members-only resource: What You Need to Know About Pregnancy Discrimination and Accommodations]

PWFA Coordination

The PWFA's accommodation provisions are based on the ADA's, but under the PWFA, an employer may temporarily have to eliminate an essential job function. That's not the case under the ADA, Phillis said.

Ho noted that the ADA covers people with disabilities, while the PWFA protects individuals with known limitations related to pregnancy, childbirth or related medical conditions.

"Given the PWFA's lower standard of a known limitation, as compared to the ADA definition of disability, if an employee is considered disabled under the ADA due to a pregnancy-related condition, they would almost certainly be covered under the PWFA, but all employees covered under the PWFA will not be covered by the ADA," said Stephanie Kaplan and Julia Riskowitz, attorneys with Blank Rome in Philadelphia, in an e-mail.

"Employers cannot require an employee to accept a reasonable accommodation not arrived at through the interactive process or to take leave—paid or unpaid—if another reasonable accommodation is available absent undue hardship," Cano cautioned.

Ho said employers should take the PWFA's approaching effective date as an opportunity for refresher training for HR and managers on reasonable accommodations and how to properly engage in an interactive process, including special attention to the importance of documentation.

If the U.S. Department of Labor (DOL) issues an updated poster for the PUMP Act before the Equal Employment Opportunity Commission (EEOC), which will enforce the PWFA, updates the "Know Your Rights" poster, or vice versa, employers that use all-in-one labor posters may want to wait until both updates are complete to purchase a new poster, Cano said. In the interim, employers may need to print the required posters from the DOL or EEOC websites for continued compliance, she noted.