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New Senate Bill Seeks to Expand Protections for Nursing Mothers

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Currently under the Fair Labor Standards Act (“FLSA”), employers with 50 or more employees are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” [1] Employers are also required to provide “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.” However, this only applies to non-exempt employees. More simply, under the current law, only overtime-eligible employees are entitled to breaks to express milk; employers are currently not required to do the same for exempt (i.e. salaried) employees under federal law. [2]

But this may be changing soon. Earlier this month, a bipartisan group of senators introduced legislation that would “provide salaried employees in traditional office environments—a group of approximately 13.5 million executive, administrative, and professional women—with reasonable break time and a private place to pump breastmilk.”[3] The “Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act” (S.3170) is intended to expand the federal law protections already in place for hourly employees to salaried ones. Click here for a copy of the bill. Additionally, the legislation includes an “anti-retaliation enforcement provision to grant women whose workplaces flout the law with pathways to fight for fair compensation and enforcement of the law.”[4]

We will keep a close eye on this bill, but for now, there are still a few take-aways. First, employers should consider reviewing whether they offer all their non-exempt nursing mothers with break time to express milk and a private place to do so. A bathroom is not sufficient. Second, employers may want to check their states’ laws on the issue, as individual states may grant greater protections than the FLSA. Third, there is nothing preventing employers from offering their salaried employees the same protections.

[1] Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, U.S. Dept. of Labor—Wage and Hour Division, (April 2018), found here.

[2] The FLSA requirement of break time for nursing mothers to express breast milk does not preempt state laws that provide greater protections to employees. Employers should closely examine their state’s laws.

[3] Merkley, Murkowski, Duckworth, Booker Introduce Bipartisan Legislation To Expand Breastfeeding Protections At Work (January 9, 2020), found here.

[4] Id.