By Lindy Korn, Esq.
The U.S. Department of Labor (DOL) said a Michigan auto plant is required to provide employees with additional private space to nurse their babies, after the DOL learned that nursing mothers employed by the auto plant were waiting up to 20 minutes for a lactation room. The investigation and decision make clear that the employer protect workers’ rights when lactation accommodations are needed. The decision is also in keeping with the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers), which requires an employer to provide breaks and space for employees to express breast milk.
The PUMP Act requires a reasonable break time for employees who need to express breast milk for a two-year period beginning on the date they first need this accommodation. It also requires that the location is a place, other than a bathroom, that offers privacy and is free of intrusion by others. Additionally, breaks can be unpaid. However, an exemption applies to individuals employed as airline flight crew members. Also, companies with fewer than 50 employees can be exempt if the time and space requirements impose an undue hardship due to its size, financial resources, or business structure. Basically, the guidelines for “undue hardship” are the same as those under the Americans with Disabilities Act, which considers the cost for the accommodation based on the employer’s resources.
Many state laws and employer policies already provide employees with breaks and space to express breast milk. However, the PUMP Act expands laws and protections already in place since 2010 under the federal Fair Labor Standards Act (FLSA). Prior to the PUMP Act, FLSA only required that employers provide “reasonable break time” for nonexempt employees to express breast milk for one year after a child’s birth. The FLSA also did not provide a private right of action for employees prior to the PUMP Act. However, as of April 28, 2023, an employee can bring an action against its employer for violating the PUMP Act. The employee may file a complaint with the Labor Department’s Wage and Hour Division, or bring a suit against the employer for damages.
If an employee has been discharged because of a request for a lactation space or break time, or the employer states that it will not comply with the PUMP Act, the employee should inform the employer regarding its failure to comply, and allow 10 calendar days for the employer to comply prior to commencing a suit.
If you are an employer and do not have a lactation space, but have eligible employees, it is important to designate such space. If you do not have any current eligible employees, it is still important to plan for space, should an employee become eligible in the future.
Guidance regarding the PUMP Act is available at https://www.womenshealth.gov/supporting-nursing-moms-work. You may wish to consider posting a flyer or employer policy regarding this.
Lindy Korn, Esq. is an attorney who focuses on preventing and correcting illegal workplace discrimination, sexual harassment, and retaliation. Learn more at www.buffalo-discrimination-attorney.com or call 716-856-KORN.
