About the Law

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023, into law. The law includes the PUMP for Nursing Mothers Act (“PUMP Act”), which extends to more nursing employees the rights to receive break time to pump and a private place to pump at work and may impact some of the other information provided below. Under the PUMP Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view to express breast milk while at work. This right is available for up to one year after the child’s birth.

WHD Fact Sheet #73 and the Frequently Asked Questions below provide basic information about the law.

Questions & Answers

What types of employers are covered by the law?

All employers covered by the FLSA must comply with the PUMP at work provision. As explained further below “Does the PUMP at work apply to small businesses?” ), all such employers are subject to the FLSA break time requirement unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship.

Many U.S. states, Puerto Rico, and the District of Columbia have laws related to breastfeeding and expressing milk in the workplace. Are these state laws preempted by the new federal break time requirements?

The FLSA requirements under the PUMP Act do not preempt State laws that provide greater protections to employees (for example, compensated break time,  or  break time to express milk beyond one year after the child’s birth).

What must an employer provide to workers who need to express breast milk in the workplace?

Employers are required to provide a reasonable amount of break time and a space to express milk as frequently as needed by the nursing mother, for up to one year following the birth of the employee’s child. The frequency of breaks needed to express breast milk as well as the duration of each break will likely vary. The space provided by the employer cannot be a bathroom and it must be shielded from view and free from intrusion by coworkers or the public.

Do PUMP at work requirements apply to small businesses?

All employers covered by the FLSA , regardless of the size of their business, are required to comply with this provision. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if the employer can demonstrate that compliance with the provision would impose an undue hardship. Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

For purpose of the undue hardship exemption, how will the Department determine whether an employer has fewer than 50 employees?

All employees who work for the covered employer, regardless of work site, are counted. Consistent with the FLSA definition of employee, “any individual employed by an employer” must be counted, including full-time employees, part-time employees, and any other individuals who meet the FLSA definition of employee found at 29 U.S.C. 203(e)(1).

Does the break time have to be paid break time?

No.  However, if employers provide compensated breaks, an employee who expresses milk during a break must be compensated in the same way that other employees are compensated for break time. Additionally, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See Wage and Hour Division Fact Sheet #22, Hours Worked under the FLSA .

Do employers need to create a permanent, dedicated space for use by nursing employees?

An employer may create or convert a temporary space for expressing milk, or make a space available when needed, by the nursing employee.  The space must be shielded from view, and free from any intrusion from co-workers and the public. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing employees’ use, it must be available when the employee needs in order to meet the statutory requirement. Employers may also choose to create permanent, dedicated spaces  for employees to express breast milk.

Do employers have to provide a space to pump breastmilk even if they don’t have any nursing employees?

The statute requires employers to provide a space for a nursing employee “each time such employee has need to express the milk.” If there is no employee with a need to express breast milk, then the employer would not have an obligation to provide a space. It is a best practice for employers to consider where they will make space available when it is needed.

If the only space available to express breastmilk at a work site is a bathroom, can employers require employees to express breast milk there?

No. The statute specifically states that the space provided for employees to express breast milk cannot be a bathroom.