In an era in which women's rights are under siege, the PUMP Act is a rare victory

In 2022, a Florida woman sued Walmart after being terminated alleging she was "harassed" for pumping breast milk at work.

According to the Miami Herald, the woman claimed that when she tried to take breaks to pump breast milk, management made her wait until one hour to unlock the room designated for lactation. At times, she was allegedly interrupted when she finally made it into the room, and even was forced to share the space with male coworkers when she pumped.

Months later, the retail giant faced another lawsuit which accused it of providing an Iowa woman with "an unsanitary storage closet to express her breast milk."

"It is inexcusable and unlawful that qualified women are still facing these kinds of discrimin­atory barriers to career advancement in the workplace," Gregory Gochanour, regional attorney for the Equal Employment Opportunity Commission's (EEOC) Chicago District Office, said at the time. "Federal law clearly prohibits employers from making discrim­inatory promotion decisions based on sex stereotypes and requires employers to provide equal working conditions for their employees regardless of race."

The past few years brought to the forefront the issue of sexual harassment in the workplace; but one subset of this larger #MeToo-related discussion is the discrimination working mothers face postpartum while pumping breast milk. At the end of 2022, a bill entitled Providing Urgent Maternal Protections for Nursing Mothers Act — casually referred to as the PUMP Act — passed Congress as part of the omnibus spending package expanding rights and protections to lactating people.

Salon spoke with Daphne Delvaux, Employment Attorney and Founder of The Mamattorney, a platform educating women on their rights at work, about how the PUMP Act will help lactating women in the workplace and what changes it made to existing protections. "Essentially, what the PUMP Act did was it elevate conservative states with progressive states in terms of workplace rights of pumping," Delvaux said.

This interview has been edited and condensed for clarity.

In 2010, the Break Time for Nursing Mothers law passed requiring employers to provide reasonable break time for breastfeeding employees and a non-bathroom space to pump during work. Yet one in four women who could be covered by the Break Time law weren't. Can you explain why that was?

It excluded salaried workers. There was a distinction between exempt and nonexempt, and specifically only the workers subjected to the FLSA [Fair Labor Standards Act] which are generally considered hourly workers, were eligible for pumping breaks. So anyone that was on salary that was exempt, which is a ton of workers who were not eligible for pumping breaks. They also excluded certain industries.

So there were a lot of exemptions to the bill, and anytime you have a bill with exemptions, it causes confusion. Both for the employers and the employees... and the result of confusion within the law is that first employees will often assume they have no rights. They will hear from friends or colleagues that there are no rights for pumping and they will kind of take that at face value, right?

But the person they're talking to may be in a totally different job situation and have different conditions. So when the lactating mother is not asking for her rights because she assumes she has none, what often happens is that she ends up resigning her job. It also causes confusion for employers, because they have to kind of parse out who's eligible who's not eligible. And then they have to provide breaks to some but not all, causing kind of internal turmoil and frustration.

Enter The PUMP Act, which the Biden administration signed into on Dec. 29, 2022. What are the important changes that were made to this legislation?

So it expanded eligibility to salaried and exempt workers. And the second thing that changed is that it extended the time from from one to two years postpartum. Before pumping rights were only protected for one year postpartum and now that's been extended to two years. Recently, guidelines came out from the American Academy of Pediatrics providing guidance that generally two years of breastfeeding is recommended. But then when women only have one year of pumping rights, it just was very frustrating to receive that information. Because it's not actually possible to put that in practice when you don't have the ability to pump at work. You're not going to be able to breastfeed for two years because the supply will just not be able to expand such long breaks from expression and expressing breast milk.

Right.

Another important piece — and I think this may actually be one of the most important pieces that I see in my work — is that pump time was traditionally unpaid time. With the PUMP Act, it has to be considered paid time if the woman is working. Now, that means that if the mother can work while pumping, the work has to be considered paid time. Now this is only going to apply, unfortunately, mainly to more professional jobs: office workers, women who can actually sit at the desk in their own office. I'm a little concerned that this is going to disproportionately impact lower paid industries, such as grocery workers, teachers, and nurses.

Does this law provide any protections for accommodating women in regards to the expectations they're held to at their jobs while lactating?

So California has a law that says breastfeeding mothers have a right to reasonable accommodations, that lactation is considered a birth-related health condition. And what that means is that employers do actually have an obligation to see if they can make that job easier for the lactating employee.

Within federal law, you need an actual health condition such as mastitis, such as depression, something that is an actual legal disability, because then you would assert your rights under the ADA [Americans with Disabilities Act]. Sometimes, when you're weaning, that can actually trigger postpartum depression or anxiety, and then that could entitle a woman to request certain accommodations such as time off rights, or a change to the job and modification to the job, temporary telework, or more flexibility. When it rises to the level of illegal disability, that's when you can actually ask for changes to your job.

In California, what role exists in and of itself just by virtue of being a lactating mother... I would like to see that extended into a federal law. I think that's gonna really make it easier for women to keep doing their jobs, because it's really unfair if you're there nine to five, and you're missing a ton of time, but you need to get all of your work done. At the very least, there needs to be some flexibility on time. 

Sadly, flight attendants were excluded from this bill, right?

Flight attendants, airlines and railroad. And that's because of the lobbying done in the Midwest.

The political history of the bill was that there was a lot of resistance from a few Republican senators, specifically to protect these sorts of industries, which were very present in their home state. So that's one of the caveats. That's one of the things that we had to compromise on. And sometimes [that's] the only way to get these bills passed [and] it is frustrating, but it's just the reality of what this is.

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Do you think there's a lack of education in workplaces on lactation?

A lot of the confusion I see is [around] what's reasonable time off for pumping. And, you know, a lot of employers assume that this can be done within 10 to 15 minutes. There needs to be some education on lactation because what I see is that women have to educate their employers on what it actually means in terms of demand and supply, that it's not something that can wait, it's not something you can do at any time — milk doesn't just come out — and if you don't do it, it will hurt. You can actually be subjected to medical infections. And if you don't do it, you lose your supply. There's a ton of education that I don't really see in the workplace and that burden is put on the lactating woman. Right now, it's all on women. They have to ask for the time off. Put it on their calendar. Explain to coworkers why they can't join a Zoom call.

A lot of people think the PUMP Act is just about providing a place to pump and protected break time, but it also intersects with sexual harassment in the workplace.

Yeah, jokes made about breasts, managers walking in on women while they're undressing, and then making inappropriate comments, I've definitely seen that. If you're undressing at work, it's uncomfortable for women to do that. And then because the co-workers or managers know that that's happening, there are going to be comments made about that. I'm definitely seeing some cross-section there with sexual harassment.

How can employees hold employers accountable for the PUMP Act?

When a company is in violation, you can go to a lawyer like me and we enforce your rights. You're entitled to damages. It's going to get interesting for companies because there's a severe penalty for not respecting these rules, it's not something to mess around with.