The Federal PUMP Act and Its Application to Colorado Employers
Madeline Harker, Law Clerk
On December 29, 2022, the “Providing Urgent Maternal Protections for Nursing Mothers Act” (“PUMP Act”) was signed into law, requiring employers nationwide to provide certain break time and space accommodations for nursing employees to be able to pump breast milk on the job. The Wage and Hour Division of the U.S. Department of Labor (the “Division”) recently issued additional enforcement guidance describing the PUMP Act’s requirements, enforcement procedures, exemptions from the Act, and other pertinent issues.[1] In particular, the PUMP Act expands employee enforcement rights beyond those contemplated by Colorado’s own protections for nursing employees.
PUMP Act Requirements for Employers, Generally
Under the PUMP Act, employers must provide nursing employees “a reasonable break time each time such employee has need to pump breast milk at work for one year after the child’s birth.”[2] Nursing employees must be provided access to a space that is: (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time it is needed by the employee; and (4) not a bathroom. In order to ensure the employee has privacy while pumping breast milk, employers must take measures such as providing a lock for the door or displaying a sign when the space is being used. Under federal law, nursing employees must be provided with: (1) a place for the employee to sit; (2) a flat surface on which the pump can be placed, other than the floor; and (3) a safe way to store milk while at work.
In addition to these requirements, the PUMP Act requires that nonexempt hourly employees must be completely relieved from duty during any break to pump breast milk, or else the time spent is counted as hours worked and is compensable. For exempt employees paid on a salary basis, their salaries cannot be reduced to account for breaks taken to pump breast milk.
Exceptions to the PUMP Act Requirements
Certain employers are exempt from implementing PUMP Act accommodations. For example, air carriers are exempt from providing these accommodations to “crewmembers,” including pilots and flight attendants, assigned to perform duty in an aircraft during flight times.
Small employers, with fewer than 50 employees, may also be exempt if the employers can show that compliance would cause “undue hardship.” These employers must show that the difficulty or expense of compliance due to the size, financial resources, nature, and structure of the business causes undue hardship, but the Division has emphasized that exemptions will be limited and that any burdens must, indeed, be significant.
How The PUMP Act Compares to Colorado’s Nursing Mother Accommodation Laws
Colorado law provides its own similar protections to nursing employees in the context of its wage and hour laws, which predate the PUMP Act.[3] Additionally, Colorado’s accommodation requirements for nursing employees extend for up to two years after the child’s birth, as opposed to one year under the PUMP Act.
However, the PUMP Act does potentially expand employee enforcement rights beyond what Colorado law provides. Specifically, the PUMP Act provides that there is no waiting time or special procedure for an employee to file an administrative complaint for any PUMP Act violation or to bring a civil lawsuit to enforce the act’s break time requirements. To bring a lawsuit to enforce the act’s space requirements, an employee must notify the employer of the need for space and give the employer ten days to comply before bringing suit, subject to certain exceptions. Conversely, before employees may bring a lawsuit for violations of Colorado’s nursing employee protections, they must participate in non-binding mediation first. Thus, to the extent an employer’s conduct violates both Colorado law and the PUMP Act, employees may seek immediate enforcement with the Division or the courts under the latter.
Employer Considerations
While the PUMP Act is generally harmonious with Colorado’s own break time protections for nursing employees, Colorado employers should be aware of the act’s provisions and the Division’s guidance as to compliance—particularly since federal law does not impose a non-binding mediation requirement for disputes under the PUMP Act. As always, Campbell Litigation is available to assist employers with these and other wage and hour-related questions and issues.
[1] https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-2.pdf.
[2] Id.
[3] Colo. Rev. Stat. § 8-13.5-104.