Keep Your Handbook Up to Date – Lactation and Remote Work Policies - American Society of Employers - Michael Burns

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Keep Your Handbook Up to Date – Lactation and Remote Work Policies

employee handbookWith the passage of the PUMP Act last year employers with 50 or more employees should now consider including a policy addressing nursing mothers in the workplace. Employers under 50 in size may have an exemption but only if they can demonstrate that compliance for a particular employee causes undue hardship.

This policy should provide information to employees about how the employer is complying with the PUMP Act. The policy should provide notice that nursing mothers have a designated place within the workplace to express breast milk if necessary. This protected employment right is for up to one year after the birth of their child.

The frequency and duration of breaks will vary by employee. The law requires employers to allow for a break each time the employee needs to break to pump. The schedule of breaks can be agreed to based upon the employee’s need to express. Fixed schedules are not allowed; however, and adjustments may be required over time.

Breaks may be unpaid unless required by federal, state, or local law. Michigan’s law protects the right to nurse but does not address employment per se. Michigan employers can follow the Fair Labor Standards Act (FLSA) which requires pay for breaks of less than 20 minutes.

Employer policy on this should direct the employee to the designated place available to express. This place must be free from intrusion or where the employee is shielded from view. This includes privacy if working on a computer camera as well. This place cannot be a bathroom and must be a “functional space” as defined by regulation.

For more information on the PUMP Act contact ASE’s research department via the members only HR Research Hotline.

Another policy undergoing update and revision is policies on Remote Work. Before the COVID pandemic some employers had telecommuting policies. During and subsequent to the pandemic, employers have  adopted work practices where employees may work some of their time remotely and for other parts of the week may be required to come to the workplace. This is a hybrid remote work schedule. Full remote work would have the employee off-site, usually at a home-based office. Employers have discovered in some cases and to their surprise, the employee working remotely is actually working at an out-of-state location.

A remote work policy should provide information about how an employee becomes eligible to work remotely. Not all jobs within an organization allow for remote work. The policy should state what criteria are required for a job to be worked remotely. This may include working a specific period of time before being eligible for remote work and whether it is an employee perk. Those circumstances should be stated in the policy if they are present. This is to avoid confusion over who and when remote work may apply. Job position, occasions, or requirements for working from home should be clearly identified.

The policy should state the employee needs to provide notice if they will be working out of state. Many laws such as workers’ compensation and unemployment benefit insurance govern based upon where the work is performed. State wage and hour laws would apply based upon where the employee is working from and will require different compliance when working from states such as California or Massachusetts.

It is recommended that a remote work policy include notice that all employment policies that apply in the office will apply to remote work. Set hours should be communicated and the policy should state the employer retains the discretion to revoke the remote work arrangement if the employee is failing to meet satisfactory performance standards.

Make sure cybersecurity and data breach policies while working remotely are addressed in the policy. Employees should be responsible for following the company’s security protocols, confidentiality, and trade secret protection policies too.

As with all major policy implementation or updating, it is recommended the employee acknowledges they have received, read, and understand the policy by way of a sign off, either electronically or via hardcopy that is kept in the employee's file.

It is recommended to include the above policies in the employee handbook for easy review and reference.

ASE Connect

If you would like a comprehensive review of your employee handbook, ASE offers review services that includes a compliance check, an inventory of policies with recommendations for missing policies, and tips for better policy layout of the handbook. For more information on this service contact Michael Burns.

Download a handbook checklist here.


Sources: DOL Field Assistance Bulletin No. 2023-02; Handbook Hot Topic: Remote Work Policies Melissa Spence (5/25/23)


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