In Hawaii, the rights of lactating employees are safeguarded by both state and federal laws. Compliance can be challenging, particularly for employers who have limited space in a fast-paced environment. With the nationwide introduction of the PUMP for Nursing Mothers Act (the PUMP Act) in 2023, the US Department of Labor (DOL) recognized the need to provide additional clarification to employers regarding breastfeeding in the workplace. The new guidance, offering valuable insights, aids Hawaii employers in continuing to provide time and space to employees covered by these laws.

Recap: Hawaii and Federal Protections
Long before the PUMP Act, Hawaii Rev. Stat. § 378-2(7) was enacted to expressly prohibit employers from discriminating against lactating employees, to include actions like firing, demoting, refusing to hire, or penalizing an employee for breastfeeding or expressing milk at the workplace. In 2013, Hawaii’s Act 249, further required employers to provide reasonable break time for employees to express milk for their nursing child for up to one year after the child's birth, and to provide a suitable location (excluding restrooms), shielded from view and free from intrusion.

The PUMP Act similarly mandates that employers offer a reasonable amount of break time and a designated space for nursing employees to express milk as needed, within the first year after childbirth.

Both federal and Hawaii laws protect all employees, but exemptions vary between the two. Federal law allows exemptions for employers with fewer than 50 employees, if they can prove an undue hardship due to business size, financial resources, nature, or structure. Hawaii’s Act 249 grants exemptions to employers with fewer than 20 employees, if they can similarly prove an undue hardship.

New Insight from the DOL
Compliance may be more straightforward for employers who have implemented remote work, have flexible working schedules, or have spaces such as empty offices ready to be designated for lactation. Employers in other industries, such as retail, fast-food, or care industries, may find compliance more challenging. The DOL has begun to roll out free webinars to assist these industries and others with the PUMP Act. See FLSA Protections to Pump at Work | U.S. Department of Labor (dol.gov)

Recent examples and guidance worth noting are as follows:

• In a small retail setting, the employer could create a temporary space for pumping by using dividers and signs in a portion of a storage room furnished with a chair and table, with signage on the door to prevent intrusion and any surveillance cameras blocked. Or the employee could be allowed to use a manager’s office with similar alterations.
• In a large medical office building, a room could be set up with privacy screens to enable multiple employees to pump simultaneously.
• In a bookstore with multiple bathrooms, including a separate family restroom, that family restroom cannot be closed and used as an area for an employee to pump.  Using a bathroom to pump breast milk raises health and safety concerns, which may include the risk of contracting bacteria in breast milk or breast pump equipment.
• In any workplace, an employee may not be interrupted during pumping so that the employee can assist with an urgent work matter.  Nor can an employee be required to make up the time they took for pump breaks.

Proactive Measures Should Start Now
Employers are advised to take proactive measures now, even if they do not have any employees presently protected. Now is the time to train everyone in leadership or management positions about lactating employees' rights. Ensure everyone is aware that breaks to express milk will be permitted freely, as needed by the employee. Ensure that front-line supervisors understand that these breaks may continue until the child’s first birthday. Examine the workplace to plan private spaces (excluding bathrooms) to comply with these laws during those times when an employee needs it. The space need not be permanently designated as a nursing room, but if future remodeling is planned, that may provide the opportunity to create a multi-use space.