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 and free from intrusion 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 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 employee, 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.
What types of employers are covered by the law?
All employers covered by the FLSA must comply with the PUMP at work provision of the FLSA and nearly all FLSA-covered employees have the right to take needed time and to access an appropriate private space to express breast milk for a nursing child for up to one year after the child’s birth. In some narrow cases, certain small business and transportation employers may not be required to provide space or time for employees to pump at work. See Wage and Hour Division Fact Sheet 73 for more general information on the pump at work provisions.
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).
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. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
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?
If an employee is not completely relieved from duty, time used to pump breast milk at work must be paid. For more information on what it means to be completely relieved from duty, see Wage and Hour Division Fact Sheet #22, Hours Worked under the FLSA. If employers provide paid 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, employees must be paid for breaks as required by State or local laws that apply to them.
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. 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 it 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.
What should I do if I am denied space or break time to pump?
If you think your right to reasonable break time and a space that is shielded from view and free from intrusion to pump at work has been violated, you may file a complaint with the Wage and Hour Division or file a private cause of action seeking appropriate remedies. You can call or visit any Wage and Hour Office to ask questions or file a complaint. You can also call our toll-free help line: I-866-4USWAGE (1-866-487-9243). If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
If you choose to file a private action for your employer’s failure to provide an appropriate space to pump, you may be required to provide your employer notice of the failure and 10 days to come into compliance.
You are not required to provide notice, however, before filing a complaint with the Wage and Hour Division or when filing a private action for your employer’s failure to provide reasonable break time. An employer cannot retaliate against you for exercising your rights, filing a complaint or cooperating with an investigation.
What might I be able to recover if my right to pump at work was violated?
If your right to pump at work was violated you may be entitled to remedies that are available under the FLSA such as employment, reinstatement, promotion, payment of wages lost and an equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.