The FLSA requires that employers provide covered employees “reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and 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.” These protections apply at the employee’s worksite, including when an employee is teleworking from their home or another location.

For example, an employer must provide an appropriate place for an employee to pump breast milk when the employee is working at an off-site location, such as a client worksite. Additionally, an employer must ensure the employee has a place to express breast milk that is “shielded from view.” This includes ensuring that an employee is free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk regardless of the location they are working from.

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 into law, which includes the PUMP for Nursing Mothers Act (“PUMP Act”). Pub. L. No. 117-328, 136 Stat. 4459, 6093-97 (Dec. 29, 2022). The PUMP Act extended coverage to more employees, among other changes. The PUMP Act did not change the basic requirements under the FLSA that reasonable break time and space must be provided to employees for pumping breast milk.

The frequency and duration of the breaks that a nursing employee needs will vary depending on the individual situation. In most cases, an employer cannot deny the employee the right to take a needed break to pump breast milk.

Employers are not required under the FLSA to compensate nursing employees for breaks taken for the purpose of expressing milk. However, when an employer provides compensated breaks, an employee who uses that break time to express milk must be compensated for the break. In addition, consistent with the FLSA’s general requirement, if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time. If a remote employee chooses to attend a video meeting or conference call – even if off camera – generally the employee in that case is not relieved from duty and, therefore, must be paid for that time.