On December 29, 2022, President Biden signed into law the Providing Urgent Maternal Protections for Nursing Motions (PUMP) Act. (For more information, please read our Client Alert.) The PUMP Act requires employers to provide a reasonable amount of break time and a private, non-bathroom space to express milk as frequently as needed by the nursing employee, for up to one year following the birth of the employee’s child.

The Fair Labor Standards Act (FLSA) previously provided these protections to non-exempt workers, but excluded exempt workers. Now, the PUMP act includes non-exempt and exempt workers. As a result, industries that may not have been impacted in the past will now have to make adjustments to workplace policies and physical spaces to accommodate nursing employees. Examples of workers who are now protected by the PUMP Act include: registered nurses and nurse practitioners, agricultural workers, retail workers, and traveling salespeople. Compliance with the PUMP Act will serve to be more challenging for some industries, such as the retail industry, whose spaces are extremely small and not constructed with the PUMP Act in mind.

To assist various industries with this adjustment, the Department of Labor (DOL) has begun publishing tailored guidance documents. Currently, there are guidance documents for the agriculture, care, and restaurant, and retail industries and these are available here.

Agricultural workers

In terms of the Agricultural industry, the DOL’s compliance guide confirms that agricultural workers who work outdoors are still entitled to a private space to pump and helpfully suggests that an agricultural employer would not need to create a permanent structure. Rather, the DOL indicates that something moveable, like a tent, could be an acceptable temporary space, permitted that the tent was large enough to accommodate a chair and room for the nursing mother to stand.

Medical and care workers

In terms of care workers, the DOL’s guidance confirms that a hospital worker is not required to find someone to cover them while they need to take a break to pump milk, and employees at assisted living centers cannot be interrupted on a pump break to respond to a resident’s needs.

Restaurant and retail workers

Lastly, the DOL guidance for restaurant and retail workers clarifies that employers cannot require employees to make up time that an employee spends on pumping to meet productivity measures. The guidance further helpfully suggests that for restaurants or retail shops, a storage room or a manager’s office may serve as an acceptable lactation space, provided that the employers create privacy through the use of locks, turning off cameras, putting up signage, and putting up dividers.

The PUMP Act presents new challenges for employers in the agriculture, care, restaurant, and retail fields. Miller Johnson is here to help employers navigate break time requirements and identify compliant private spaces for nursing employees. Please contact the author, Barbara Moore, or your Miller Johnson attorney to help you with any questions or concerns.