Workplace Support in Federal Law

The PUMP for Nursing Mothers Act has been Signed into Law!

On December 29, 2022, President Biden signed the Fiscal Year 2023 Omnibus Spending Bill into law. The bill includes the PUMP for Nursing Mothers Act, which extends to more employees who are nursing mothers the right to receive break time to pump and a private place to pump at work and makes other adjustments. More details about the changes in the law are forthcoming. Read the press release.

Workplace Support in Federal Law: Break Time for Nursing Mothers Law

Effective March 23, 2010, this federal law requires employers to provide break time and a place for most hourly wage-earning and some salaried employees (nonexempt workers) to express breast milk at work. The law states that employers must provide a "reasonable" amount of time and that they must provide a private space other than a bathroom. They are required to provide this until the employee's baby turns one year old.

This provision was passed as Section 4207 of the Patient Protection and Affordable Care Act (ACA), which amended Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) by adding at the end the following:

(1) An employer shall provide--

a 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;
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.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Questions About the Break Time for Nursing Mothers Law

You or your employer may have questions about how the Break Time for Nursing Mothers law applies to you. Many common questions and concerns are addressed in the following sources:

U.S. Department of Labor, Wage and Hour Division (WHD):

Statutory language: full text of the "Break Time for Nursing Mothers" law
Fact Sheet #73: includes information on general requirements, time and location of breaks, and coverage and compensation requirements under the law
FAQs: answers many of the questions about the law

U. S. Department of Health and Human Services, Office on Women's Health (OWH):

Supporting Nursing Moms at Work: Employer Solutions: online resource to support employers of breastfeeding women at work, searchable by either "industry" sector or "solution" type
Business Case for Breastfeeding: a comprehensive program developed to educate employers about the value of supporting breastfeeding employees in the workplace
Womenshealth.gov/breastfeeding: provides tips, suggestions, and important information and resources for breastfeeding women

Online Workplace Guide

What You Need to Know About the Break Time for Nursing Mothers Law

This guide compiles the above resources in an easy to understand format to ensure lactating workers have the information they need to make working and breastfeeding a success. It was designed to help employees understand their rights in the workplace and serve as a break time resource for families and employers with questions about the law.

Contents

Are the breaks paid or unpaid?

The Break Time for Nursing Mothers law does not require pumping breaks to be paid. However, if your employer already offers paid breaks and you use those breaks to pump your milk, your time should be paid in the usual way. If you need extra time beyond what is usually allowed for these paid breaks, then the additional time does not need to be paid and your employer might ask you to "punch out" for the additional time.

For example, if your employer normally allows employees to take a 15 minute break, but you need 25 minutes to pump your milk, then 15 minutes should be paid and the other 10 minutes can be unpaid.

If you continue to work during your pumping breaks, you should be paid in the usual way.

Who is covered by the law?

The Break Time for Nursing Mothers law applies to nonexempt employees covered by the Fair Labor Standards Act (FLSA).

The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. The FLSA contains some exemptions from these basic standards. Some apply to specific types of businesses; others apply to specific kinds of work. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an under hardship.

If you are covered by the FLSA and eligible for overtime pay, you may have the right to break time and a private space to express milk for your baby while you are at work. Even if you are not covered by the federal law, you may be covered by a state law.

For help determining whether you are covered, call the Wage and Hour Division at 1-866-487-9243, try the Fair Labor Standards Act Advisor, or use the information below:

Break Time for Nursing Mothers law: Is your work covered by the FLSA?

The Break Time for Nursing Mothers law only covers employees who are covered by the FLSA. In order to be covered by the FLSA, your job must qualify under either "enterprise coverage" or "individual coverage," as explained below.

Enterprise Coverage (this means the law applies to the business):
Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are:

businesses that have an annual dollar volume from sales or business done of at least $500,000. You can look for this information online or by contacting your company's Human Resources department; or
hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies.

Individual Coverage (this means the law applies to the individual person):
Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in commerce between states ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce." You are involved in interstate commerce if you:

help produce goods that will be sent out of state
regularly make out of state phone calls
handle records of interstate transactions
travel to other states for your work
do janitorial work in buildings where goods are made for shipment outside the state

Break Time for Nursing Mothers law: Are you a nonexempt employee?

The Break Time for Nursing Mothers law is included in section 7 of the FLSA, which deals with overtime pay requirements. Only employees who are not exempt from section 7 are entitled to breaks to express milk under the FLSA.

If your employer is required to pay you overtime (one and a half times your usual pay rate) when you work more than 40 hours per week, then you are considered a nonexempt employee. Even if you only work part-time or have never actually received overtime pay, you may still be considered a nonexempt employee.

While employers are not required under the FLSA to provide breaks to lactating workers who are exempt from overtime pay requirements of section 7, they may be obligated to provide such breaks under state laws.

If you are not covered by the federal "Break Time for Nursing Mothers" law, or if your work is covered under the FLSA but you are exempt from overtime, visit the U.S. Department of Labor Women's Bureau online map of employment protections for women who are pregnant or nursing for a state-by-state listing or contact your state breastfeeding coalition to find out if you are covered by a state law. For information on other state breastfeeding laws, see the directory from the National Conference of State Legislatures.

What if your state already has a law?

Federal law provides workplace lactation protections that apply to employees in all states. Some employees have additional protections through state or territorial laws.

Who is in charge of enforcing the law?

The Department of Labor Wage and Hour Division (WHD) is in charge of enforcing the Break Time for Nursing Mothers law.

For information on filing a complaint against your employer, visit https://www.dol.gov/agencies/whd/contact/complaints or call 1-866-487-9243.

What are the benefits to employers?

Many employers do not realize that supporting lactating workers can save money. Employer benefits include:

Employees miss work less often because breastfed infants are healthier.
Breastfeeding lowers health care costs.
Supporting lactating workers helps employers keep their best employees so that less money is spent hiring and training new employees.
Breastfeeding employees who are supported in the workplace report higher productivity and loyalty.
Supporting lactating employees creates a positive public image.

Learn more about how employers benefit from workplace breastfeeding support programs.

How should you prepare to go back to work?

Helpful tips for preparing to go back to work:

Get breastfeeding off to a good start by nursing within the first hour after birth if possible.
Feeding your baby whenever the child shows signs of hunger will help you establish your milk supply.
Ask for help from a lactation consultant, nurse, or other health care professional whenever you need it.
Take as much time off as you can. This will give you time to recover, build your milk supply, and settle into a good feeding routine.
Before returning to work practice pumping your milk and freezing 1-2 ounces at a time.
If you haven't already, talk to your employer about your intention to pump breast milk for your baby during the workday. Explain what you will need and be prepared to offer ideas on how to make it work.
Make sure you have everything you need including your pump, storage bottles or bags, a cooler and ice packs or a refrigerator to store your milk in, breast pads or an extra shirt in case your breasts leak, pump cleaning supplies, and other needed items.
To maintain your milk supply after returning to work, you should pump as often as your baby eats. If you are not making enough milk, consider pumping more often.
Not all breast pumps work for everyone. If you are having trouble pumping, contact a lactation consultant or refer to this FDA resource to identify which pump is best for you.

Find more tips and information on preparing to return to work from the DHHS Office on Women's Health and the American Academy of Family Physicians.

How should you talk to your employer about nursing breaks?

Tell your supervisor, manager, or Human Resources personnel during your pregnancy that you will need time and a space to pump breast milk when you return to work. Be ready to offer ideas on how to make it work and explain what you will need.

The Business Case for Breastfeeding (BCB) is a helpful resource to use when thinking through how to talk with your employer, and includes handouts that you can give your employer. The toolkit offers information on the benefits of breastfeeding support programs for employers as well as tips, strategies, and resources they can use to meet the needs of both their staff and their business.

The BCB's Employee's Guide to Breastfeeding and Working includes helpful information for employees, including the following guidance on talking to your employer:

Most employers are happy to provide the support you need, as long as they know what your needs are and how important it is for you to have their support. If your company does not have a breastfeeding support program, it could be that nobody has asked for one!
Breastfeeding is the healthiest choice for your baby, resulting in fewer illnesses, infections, and certain types of skin irritations (dermatitis). It also helps you recover from pregnancy, and may reduce your risk of breast cancer. Be sure to discuss these important reasons to breastfeed with your supervisor.
Your supervisor may not know what you need to continue breastfeeding. Simply explain your basic needs for privacy and flexible breaks to express milk.
Show how meeting your breastfeeding needs will benefit the company.
Employees are less likely to miss work to take care of a sick baby because the baby is healthier. (This is true for moms and dads.)
Health care costs are lower since both baby and mother are healthier.
Employees who receive support for breastfeeding are happier and more productive.
Explain that you are committed to keeping the milk expression area clean when you are through, storing your milk properly, and not taking longer than necessary for milk expression breaks.
Be prepared! Consider possible concerns your supervisor might have.
Be a team member. Be sensitive to the issues that are important to your company, and show how supporting your efforts to breastfeed can help both of you accomplish your goals.
Be sure to show your appreciation for efforts made by your supervisor to support your breastfeeding.

The chart below outlines some of the most common responses employees receive when talking to their employer and may help you consider and prepare for any concerns your employer may have.

What does the undue hardship exemption mean for employees?

Employers with fewer than 50 employees are not subject to the Fair Labor Standards Act (FLSA) break time requirement for covered, nonexempt employees 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 employers who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Because there are examples of innovative, inexpensive solutions for every industry, earning an undue hardship exemption may be challenging for businesses. There are no exemptions for employers with more than 50 employees.

What are the space requirements?

The law requires employers to provide a place that is not a bathroom. It must be completely private so that no one can see inside the space and no one is able to enter the space while it is being used. It also must be "functional [useable] as a space for expressing breast milk."

Employers are not required to create a permanent dedicated space for breastfeeding employees. In many workplaces, there is no unused space. In that case, the employer could instead give you access to a space normally used for other things (like a manager's office or storage area).

As long as the space is available each time you need it, the employer is meeting the requirements of the law. If there are no breastfeeding employees, the employer does not need to maintain a space.

If more than one employee will need the space, a room-use schedule can be developed or the employer can install privacy curtains or dividers so that the room can be used by more than one person at a time. The dividers must ensure that each station is completely private.

If the space cannot accommodate all workers who need it, the employer is not meeting the requirements of the law.

The Business Case for Breastfeeding recommends that at a minimum, employers provide a safe and private space with a chair and a small table or shelf to set the breast pump on. An especially useful space could include an electrical outlet, a door that can be locked from the inside, a sink, and/or a refrigerator located near the pumping space. Though not required, these additions can help shorten your break time because you will not need to travel to another area to wash your hands, clean your pump parts, and store your milk.

Browse creative space solutions employers have found to meet the needs of breastfeeding employees here.

How much time is "reasonable"?

The Break Time for Nursing Mothers law recognizes that the amount of time it takes to express breast milk is different for every worker.

According to the Business Case for Breastfeeding it usually takes around 15-20 minutes to pump breast milk, plus the time it takes to get and put away your pump from where it will be stored between pumping sessions, travel to your pumping space, set up and clean your supplies, store your milk, and travel back to your work station for a total of about 30 minutes. Pump time may vary for different pump types (single, double, electric, etc). Although uncommon, some employees may need additional time.

How often can you pump during the workday?

The Break Time for Nursing Mothers law requires employers to provide time and space "each time such employee has need to express the milk." If the space is not available when you need it, your employer is not meeting the requirements of the law.

Those lactating are advised to express milk with the same frequency as their baby eats (or as needed).

Because a baby's feeding schedule changes over time, your pumping schedule will probably change too. Once your baby begins eating solid foods, you may be able to pump less often.

How long do you have the right to pump at work?

The federal Break Time for Nursing Mothers law requires employers to provide these breaks until your baby's first birthday. Some states, like Colorado, guarantee break time for longer.

How should you store your breast milk?

Breast milk can be safely stored in a shared refrigerator with other food and beverages. Under certain work conditions, or because of your personal preference, you might instead choose to store your milk in a personal cooler with ice packs. See options for handling human milk at work.

The Centers for Disease Control and Prevention offers the following guidelines on the proper handling and storage of human milk:

Safely Preparing and Storing Expressed Breast Milk

Be sure to wash your hands before expressing or handling breast milk.
When pumping milk, be sure to store it in clean containers, such as screw cap bottles, hard plastic cups with tight caps, or breast milk storage bags. Avoid using ordinary plastic storage bags or formula bottle bags, as these could easily leak or spill.
Clearly label the milk with the date it was expressed to facilitate using the oldest milk first. If delivering breast milk to a child care provider, also include the child's name and any other information required by the provider.
Do not add fresh milk to already frozen milk within a storage container. It is best not to mix the two.

Safely Thawing Breast Milk

As time permits, thaw frozen breast milk by transferring it to the refrigerator for thawing or by swirling it in a bowl of warm water.
Avoid using a microwave oven to thaw or heat bottles of breast milk
- Microwave ovens do not heat liquids evenly. Uneven heating could easily scald a baby or damage the milk
- Bottles may explode if left in the microwave too long.
- Excess heat can destroy the nutrient quality of the expressed milk.

Breast milk that has not been finished can be safely used at the next feeding as long as the child has not fed directly from the container it was stored in (ie. if your child care provider pours half of the thawed milk into a bottle, the half left in the original container can be used later on).

The Office on Women's Health offers the following guidelines on breast milk storage:

Guide to storing fresh breast milk for use with healthy full-term infants

Guide to storing thawed breast milk

What equipment and supplies do you need?

In most cases, employees are expected to provide their own pump equipment, storage containers, and cleaning supplies.

Many employers include a sink and refrigerator in or near the pumping space for washing pump parts and storing the expressed milk. Although not required, these amenities help to cut down on the amount of break time needed. If your employer does not provide a refrigerator to store your milk in, you can bring a cooler and ice packs to safely store your milk during the work day.

Breast pumps and other breastfeeding supplies are tax deductible.

What are creative solutions for break time and space?

Employers and employees in every industry have found creative solutions to make breastfeeding possible. Supporting Nursing Moms at Work: Employer Solutions is a free online resource from the Office on Women's Health that provides businesses with cost-effective tips and solutions for any industry setting. Search by industry or solutions to find options that will work for you.

Space Solution Examples:

Unused areas like a storage closet, empty office, or meeting room
Manager's office
Area that can be partitioned or blocked by a curtain
Company or personal vehicle with window coverings
Pop-up tents or temporary walls
Working from home (if possible)

Break Time Solution Examples:

Pumping during existing authorized breaks
Coming in early or staying late to make up for lost time
"Floating" staff to cover during pumping and other breaks (lunch, bathroom, smoking)
Bringing a laptop or phone to the pumping space to continue working while pumping (if this works for you)
Returning to work part-time (if possible)

What do you do if your employer refuses to comply?

The U.S. Department of Labor Wage and Hour Division (WHD) says that if your employer refuses to comply with the law, you can file a complaint by calling the toll-free WHD number 1-800-487-9243 or by visiting www.dol.gov/whd. You will then be directed to your nearest WHD office for assistance. Have this information handy to file your complaint:

Your name
Your address and phone number
The name of the company where you work(ed)
Location of the company
Company phone number
Manager or owners name
The type of work you did
How and when you were paid
The date of birth of your nursing child
A description of your concern (what part of the law did the employer fail to meet?)

All services are free and confidential. Your employer cannot fire or discriminate against you for filing a complaint with WHD.

When someone files a complaint against an employer, the WHD begins an investigation. The Federal Register Request for Information (RFI) on Reasonable Break Time for Nursing Mothers describes some of the WHD's early thoughts on the law. Section II G of the RFI states that the WHD understands that a mother's milk supply can quickly drop if she does not pump often enough, so they will prioritize violations of the "Break Time for Nursing Mothers" law whenever possible.

Find more information on how to file a complaint against your employer on the Department of Labor website.

Where should you go for help?

If you are having trouble with breastfeeding or pumping, contact your doctor or a lactation consultant. You can also find help at your local Women, Infant and Children Program (WIC) office or La Leche League group or by calling the National Breastfeeding Helpline at 800-994-9662. Find a lactation consultant in your area.

For help understanding or enforcing your rights, A Better Balance and the Center for WorkLife Law offer a variety of resources and free legal support:

Contact the Center for WorkLife Law by emailing hotline@worklifelaw.org or by calling (415) 703-8276.
Contact A Better Balance by calling (212) 430-5982 or (615) 915-2417 (Southern Office).

What other resources are available?

The Office on Women's Health has developed Supporting Nursing Moms at Work: Employer Solutions, a comprehensive online resource providing cost-effective tips and solutions to support nursing mothers in any industry setting.

Additional resources include:

Employee Rights Card: printable card developed by the Department of Labor to inform women of their rights.
Breastfeeding State Laws: directory of state breastfeeding laws from the National Conference of State Legislatures.
Employment Protections for Workers Who are Pregnant or Nursing: online map from the Department of Labor Women's Bureau shows which U.S. States have laws, statutes, and/or interpretative case law that specifically prohibit pregnancy discrimination and/or that mandate support of nursing mothers expressing milk in the workplace.
In January 2011, The Surgeon General's Call to Action to Support Breastfeeding called for 20 concrete action steps to support mothers in reaching their personal breastfeeding goals.
United States Breastfeeding Committee email updates provide information on the latest breastfeeding news and actions.
Breast pumps and breastfeeding supplies are tax deductible.
Business Case for Breastfeeding: comprehensive program developed to educate employers about the value of supporting breastfeeding employees in the workplace.

Online Workplace Guide

The PUMP for Nursing Mothers Act has been Signed into Law!