Muskat Devine Partner Corey Devine Quoted in Law360 Article on Two New Breastfeeding Laws

Muskat Devine partner Corey Devine has been featured in a Law360 article on two new breastfeeding laws regulating U.S. employers. “New Laws Elevate Breastfeeding Awareness Month’s Message” (subscription required) discusses the requirements of the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Both were signed into law at the end of 2022.

The PWFA requires employers to offer reasonable accommodations for pregnancy and related conditions, while the PUMP Act requires that lactating workers be given time and private space to express breast milk while at work for one year after a child’s birth.

The article discusses four key aspects of the new laws that employers should keep in mind:

  • The new laws fill existing gaps in protection for lactating workers.

According to the article, the laws require employers to make reasonable accommodations for conditions related to lactation that go beyond offering only pumping breaks.

The PUMP Act amended the Fair Labor Standards Act (FLSA) by expanding nursing break rights to overtime-exempt professionals who had previously been excluded from the law. It also provides legal remedies for workers denied such breaks.

The Pump Act covers all employers that must comply with its parent statute, the FLSA, unless they’re a small business that can show complying with the law would be an undue hardship. The PWFA, meanwhile, applies to employers with 15 employees or more.

Mr. Devine told Law360 that the FLSA has been broadly interpreted to cover most employers. He warned that some employers may not be ready to comply with the PUMP Act or PWFA.

“The PWFA’s amplification of the requirements of the PUMP Act is such that there could be some very difficult situations,” he said.

  • The two laws work together.

Because the laws go hand in hand, employers must look to both to determine the full scope of protections afforded relating to pregnancy.

  • The laws look to pregnancy or postpartum status, not gender.

The language in the PUMP Act statute is not gendered, which means it covers transgender and nonbinary parents who lactate as well.

“I would say that the requirements apply to any person who is pregnant … without respect to gender identity,” Mr. Devine told Law360.

  • There could be fights over “reasonableness.”

Because the Department of Labor has said the timing and frequency of lactation breaks is up to employees, not employers, there are likely to be disagreements over what each side considers reasonable.

Mr. Devine told Law360 that things could change after the year mark, when protections shift to the PWFA.

“I suppose after a year, the PWFA may continue to require the time to express breast milk. But you would get to consider whether the accommodation is reasonable,” he said. “So that would look more like an ADA [Americans with Disabilities Act] reasonable accommodation analysis.”

To read the full article, click here.