Under the Fair Labor Standards Act (FLSA), 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.
Below is general information on the FLSA’s protections for nursing employees, as extended by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which was signed into law on December 29, 2022.
About the FLSA
The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time employees in the private sector and in Federal, State, and local governments. The FLSA also protects the rights of employees to pump breast milk at work.
Break Time to Pump Breast Milk
Most employees have the right to take reasonable break time to express breast milk for their nursing child. For one year after the child’s birth, covered employees may take reasonable break time “each time such employee has need to express the milk.” An employer may not deny a covered employee a needed break to pump.
The frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child. Factors such as the location of the space and the steps reasonably necessary to express breast milk, such as pump setup, can also affect the duration of time an employee will need to express milk.
Private Space to Pump Breast Milk
Covered employees must be provided with “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Under the FLSA, a bathroom, even if private, is not a permissible location for the employer to provide for pumping breast milk.
The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing employee’s use, it must be available when needed by the employee in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing breast milk or made available when needed by the nursing employee is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.
As of December 29, 2022, nearly all FLSA-covered employees have the right to take needed time and to access an appropriate space to express breast milk for a nursing child for up to one year after the child’s birth.
Employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance with the provision would impose an undue hardship.* Whether compliance would be an 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, and 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.
Compensation for Break Time to Pump Breast Milk
Under the FLSA, when an employee is using break time at work to express breast milk they either:
- Must be completely relieved from duty; or
- Must be paid for the break time.
Further, when employers provide paid breaks, an employee who uses such break time to pump breast milk must be compensated in the same way that other employees are compensated for break time.
*undue hardships are difficult to prove and rarely approved.