Millions of workers who are carved out of breastfeeding protections would gain them under a bipartisan proposal made in the Senate on Thursday.
Sens. Jeff Merkley (D-Ore.) and Lisa Murkowski (R-Alaska) introduced a bill that would extend the right to pump breastmilk on the job to salaried workers who are excluded under current law. If the proposal passed, employers would be required to provide a clean space and break time to nearly any worker who was pumping following the birth of a child.
Merkley said it was a commonsense plan that would fill large gaps in a landmark bipartisan law he championed and passed with Rep. Carolyn Maloney (D-N.Y.) nearly a decade ago.
“Shouldn’t every woman have these protections for privacy and flexibility, to be able to pump?” Merkley told HuffPost. “I feel like we’ve made huge strides in making that the standard expectation in America, but let’s make clear it’s for every woman returning to the workforce.”
In 2010, Congress passed what’s known as the “nursing mothers” law as part of the Affordable Care Act, or Obamacare. The law states that employers have to provide breastfeeding workers with a private, sanitary space that isn’t a bathroom, as well as “reasonable” time to pump breastmilk. The measure was one of the few pieces of Obama’s signature health care reform that actually drew support from Democrats and Republicans alike.
A growing share of babies in the U.S. are breastfed, as doctors now encourage mothers to nurse for a year or more if possible. The nursing mothers law was meant to make it easier to breastfeed while holding down a job, but it came with a handful of built-in weaknesses.
One of the biggest drawbacks is that it applies primarily to hourly workers, excluding supervisors, professional employees and many others who work on salary. If a worker is not eligible for overtime pay, they are generally not covered by the law.
The Center for WorkLife Law, a research group at the University of California’s Hastings College of Law, estimates that 9 million women of child-bearing age are excluded from the federal protections in Obamacare ― many of them in female-dominated fields like nursing and teaching. Women’s rights groups have been pressing Congress to amend the law, arguing that there’s no reason a someone shouldn’t be afforded breastfeeding protections just because they’re paid on salary or work a white-collar job.
“Women who choose to breastfeed deserve the right to the time and space they need to do so, without risking their economic security,” Dina Bakst, co-founder of the advocacy group A Better Balance, which has been pushing for the legislation, said in an email. “Studies show that breastfeeding has many health benefits for women and their babies, and that supporting nursing employees has many benefits for employers, leading to lower costs and improved morale and productivity — it’s win-win.”
Merkley and Murkowski, along with Maloney in the House, have introduced similar bills in the past aimed at expanding the law’s coverage to more women. But the latest version of their legislation ― called the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act ― goes a step further. It would also entitle workers to damages in certain cases, ramping up potential penalties on employers who break the law.
If a worker is not eligible for overtime pay, they are generally not covered by the law.
The latter provision could help with what breastfeeding supporters see as another shortcoming of the statute: lax enforcement mechanisms. In most cases, women are not entitled to financial compensation under the law, unless their employer failed to pay them, curtailed their hours or illegally fired them because of their pumping.
If the cost of not following the law were higher, more employers might choose to get in line. As Liz Morris, the deputy director of the Center for WorkLife Law, told HuffPost last year, “There may be no financial implications for the employer if they completely ignore the law. In my opinion, it’s the biggest problem.”
An investigation published by HuffPost last year showed that hundreds of employers around the country have broken the pumping law since it went into effect in 2010, by failing to provide adequate break time, a clean space for pumping or both. Among 376 investigations obtained from the Labor Department, employers ran afoul of the provisions in 255 of them, or 68%.
In many cases, the physical and emotional tolls were severe. Several women told investigators they developed breast infections because they had been unable to pump at work and milk backed up in their breasts. Many women ultimately had to choose between breastfeeding or working because pumping on the job had become untenable. Some workers were even fired after trying to assert their rights under the law.
The breastfeeding protections passed in 2010 unanimously as an amendment to the Affordable Care Act. But beefing up the law since then has proven more difficult politically. The bills introduced previously in the House and Senate have not passed with Republicans at the reins. A bill in the House sponsored by Maloney would now be likely to pass with Democrats holding the majority, but the same measure would not pass as easily in the Senate, which remains under GOP control.
When Merkley and Murkowski introduced a previous version of the legislation in 2017, Murkowski ― one of the most moderate Republicans in the Senate ― turned out to be the only GOP co-sponsor. The bill never made it out of committee.
Merkley said it would be much easier to pass the measure as part of a major health care bill, the way the original protections were tacked onto Obamacare. Democrats haven’t had such an opportunity in years. But given some of the movement on family-friendly labor legislation ― President Donald Trump and Republicans just agreed to give federal workers paid parental leave as part of a defense funding bill ― Merkley said he’s confident the legislation will pass when a window opens.
“We’re basically doing no bills in the Senate, other than ones you can get unanimous consent on,” he said. “We’re looking for an opportunity to attach it when we have an actual health care bill. ... I would love to say we could get 100% of senators on with this.”