[Senate Report 118-115]
[From the U.S. Government Publishing Office]


                                                    Calendar No. 254

118th Congress}                                           { Report
                                 SENATE
  1st Session }                                           { 118-115

======================================================================
                     PUMP TECHNICAL CORRECTION ACT

                               __________

                              R E P O R T

                                OF THE

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                             TO ACCOMPANY

                                S. 2219

         TO AMEND THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
          TO EXPAND ACCESS TO BREASTFEEDING ACCOMMODATIONS IN
                             THE WORKPLACE

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

               November 30, 2023.--Ordered to be printed
               
                             __________

                                
                    U.S. GOVERNMENT PUBLISHING OFFICE                    
                           WASHINGTON : 2023                    
          
-----------------------------------------------------------------------------------     
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada                  MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut      JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California       ROGER MARSHALL, Kansas

                   David M. Weinberg, Staff Director
            Lena C. Chang, Director of Governmental Affairs
              Devin M. Parsons, Professional Staff Member
           William E. Henderson III, Minority Staff Director
              Christina N. Salazar, Minority Chief Counsel
                  Andrew J. Hopkins, Minority Counsel
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                                                    Calendar No. 254

118th Congress}                                           { Report
                                 SENATE
  1st Session }                                           { 118-115

======================================================================
 
                      PUMP TECHNICAL CORRECTION ACT
                     
                                _______
                                

               November 30, 2023.--Ordered to be printed

                                _______
                                

 Mr. Peters, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2219]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2219) to amend the 
Congressional Accountability Act of 1995 to expand access to 
breastfeeding accommodations in the workplace, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis of the Bill, as Reported.............5
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. Purpose and Summary

    S. 2219, the PUMP Technical Correction Act, would extend 
coverage of pumping accommodation requirements in the Fair 
Labor Standards Act of 1938 (FLSA) to federal employees of the 
legislative branch. Since 2010, the FLSA has required employers 
to provide accommodations for an employee to express breast 
milk for their nursing child. Language in the Congressional 
Accountability Act of 1995 (CAA) applied these FLSA 
accommodation requirements to legislative branch employees. In 
2022, Congress passed the PUMP for Nursing Mothers Act, a bill 
that moved the provisions regarding pumping accommodation 
requirements to a new section of the FLSA and expanded coverage 
to employees regardless of their eligibility for overtime. The 
PUMP Technical Correction Act would update the CAA to reflect 
these 2022 changes by ensuring a correct reference to the FLSA 
section regarding pumping accommodations for legislative branch 
employees.

              II. Background and Need for the Legislation

    Since 2010, federal law has required most U.S. employers to 
provide pumping accommodations for nursing mothers.\1\ 
Breastfeeding has a range of positive health and development 
benefits for infants, as well as health benefits for the 
nursing mother. The Centers for Disease Control and Prevention 
(CDC) describes breast milk as ``the best source of nutrition 
for most babies.'' Breastfeeding can help protect babies 
against short- and long-term illnesses like asthma, obesity, 
type 1 diabetes, ear infections, stomach bugs, and sudden 
infant death syndrome. It can also reduce the mother's risk of 
breast and ovarian cancer, type 2 diabetes, and high blood 
pressure.\2\
---------------------------------------------------------------------------
    \1\Department of Labor Wage and Hour Division, Section 7(r) of the 
Fair Labor Standards Act--Break Time for Nursing Mothers Provision 
(www.dol.gov/agencies/whd/nursing-mothers/law) (accessed Aug. 9, 2023).
    \2\Centers for Disease Control and Prevention Division of 
Nutrition, Physical Activity, and Obesity, Breastfeeding Benefits Both 
Baby and Mom (www.cdc.gov/nccdphp/dnpao/features/breastfeeding-
benefits/index.html) (accessed Aug. 9, 2023).
---------------------------------------------------------------------------
    The American Academy of Pediatrics (AAP) recommends 
exclusive breastfeeding for infants for up to six months after 
birth and continued breastfeeding as long as mutually desired 
by the mother and child for two years and beyond. AAP further 
states: ``The short- and long-term medical and 
neurodevelopmental advantages of breastfeeding make 
breastfeeding, or the provision of human milk, a public health 
imperative.''\3\ The World Health Organization and UNICEF 
similarly recommend exclusive breastfeeding for children in 
their first six months of life and continued breastfeeding for 
up to two years or beyond.\4\ According to the CDC, 83% of 
infants in the United States receive breast milk at the 
beginning of their lives.\5\
---------------------------------------------------------------------------
    \3\Joan Younger Meek and Lawrence Noble, Policy Statement: 
Breastfeeding and the Use of Human Milk, PEDIATRICS Official Journal by 
the American Academy of Pediatrics (July 27, 2022) 
(publications.aap.org/pediatrics/article/150/1/e2022057988/188347/
Policy-Statement-Breastfeeding-and-the-Use-of).
    \4\World Health Organization, Breastfeeding (www.who.int/health-
topics/breastfeeding) (accessed Aug. 9, 2023).
    \5\Centers for Disease Control and Prevention, Breastfeeding Report 
Card: United States, 2022 (www.cdc.gov/breastfeeding/data/
reportcard.htm) (accessed Aug. 9, 2023).
---------------------------------------------------------------------------
    In March 2010, Congress passed the Break Time for Nursing 
Mothers Act as part of the Patient Protection and Affordable 
Care Act, which added pumping accommodation requirements for 
employers to the FLSA.\6\ Specifically, this legislation added 
a subsection to section 7 of the FLSA, pertaining to overtime 
requirements for ``non-exempt'' employees. The pumping-related 
requirements include providing ``reasonable break time'' and a 
private location other than a bathroom for an employee's use to 
express milk within one year after the child's birth. These 
provisions also exempt certain employers with 50 or fewer 
employees from the accommodation requirements, specify that 
employers are not required to compensate employees during break 
time for pumping, and clarify that the provisions do not 
preempt state laws with greater protections for nursing mothers 
in the workplace.\7\
---------------------------------------------------------------------------
    \6\Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 
Sec. 4207 (2010).
    \7\Department of Labor Wage and Hour Division, supra note 1.
---------------------------------------------------------------------------
    The 2010 accommodation requirements applied to legislative 
branch employees due to existing language in the CAA.\8\ The 
CAA establishes workplace standards for over 30,000 individuals 
employed by legislative branch offices, including the U.S. 
House of Representatives, U.S. Senate, U.S. Capitol Police, 
Office of the Architect of the Capitol, Congressional Budget 
Office, and Library of Congress, as well as other entities 
associated with Congress.\9\ Section 203 of the CAA applies the 
fairs labor standards of the FLSA to legislative branch 
employees.\10\
---------------------------------------------------------------------------
    \8\Congressional Accountability Act of 1995, Pub. L. No. 104-1, 
Sec. 203(a)(1); 2 U.S.C. Sec. 1313(a)(1).
    \9\Office of Congressional Workplace Rights, Fair Labor Standards 
Act (www.ocwr.gov/employee-rights-legislative-branch/fair-labor-
standards-act/) (accessed Aug. 9, 2023); Office of Congressional 
Workplace Rights, Covered Community (www.ocwr.gov/the-congressional-
accountability-act/covered-community/) (accessed Aug. 9, 2023).
    \10\Congressional Accountability Act of 1995, supra note 8.
---------------------------------------------------------------------------
    The implementation of the 2010 Break Time for Nursing 
Mothers Act revealed that the placement of pumping 
accommodation requirements in section 7 of the FLSA left 
millions of nursing mothers outside of these workplace 
protections. According to a December 2010 publication by the 
Department of Labor's Wage and Hour Division, due to this 
drafting error, employees who were ``exempted'' from the 
overtime requirements of section 7 of the FLSA would not be 
entitled to break time to express breast milk.\11\ There are a 
wide range of positions ``exempt'' from section 7 overtime 
requirements, including executive, administrative and 
professional employees.\12\ Examples of ``exempt'' positions 
include teachers, registered nurses and nurse practitioners, 
agricultural workers, retail workers, managers, computer 
programmers, and others.\13\ The structure of the 2010 law left 
an estimated 25% of female workers of childbearing age, or 9 
million women, uncovered by the federal pumping accommodation 
requirements.\14\
---------------------------------------------------------------------------
    \11\Department of Labor Wage and Hour Division, Reasonable Break 
Time for Nursing Mothers, 75 Fed. Reg. 80073 (Dec. 21, 2010) (notice).
    \12\Department of Labor Wage and Hour Division, Handy Reference 
Guide to the Fair Labor Standards Act (www.dol.gov/agencies/whd/
compliance-assistance/handy-reference-guide-flsa) (accessed Aug. 9, 
2023).
    \13\Center for Worklife Law, Hastings College of Law, University of 
California, Exposed: Discrimination against Breastfeeding Workers 
(2019) (www.pregnantatwork.org/wp-content/uploads/WLL-Breastfeeding-
Discrimination-Report.pdf).
    \14\Id. at 5.
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    To address the gaps in coverage, Congress passed 
legislation in December 2022 to further amend the pumping 
accommodations requirements in the FLSA.\15\ Specifically, the 
Providing Urgent Protections (PUMP) for Nursing Mothers Act 
struck the relevant provisions in section 7 of the FLSA and 
moved them to a new section 18D of the FLSA. The bill also 
added language to: specify which positions and circumstances 
are exempt from pumping-related requirements; clarify when 
employers must consider break time as hours worked for 
compensation purposes; and strengthen processes for ensuring 
employer compliance.\16\
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    \15\Consolidated Appropriations Act, 2023, Pub L. No. 117-328, 
Division KK.
    \16\Id.; 29 U.S.C. Sec. 218d.
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    The PUMP for Nursing Mothers Act passed as an amendment to 
a larger appropriations bill for fiscal year 2023, signed into 
law at the end of the 117th Congress.\17\ The provisions 
stemmed from versions of a bipartisan bill introduced in both 
the U.S. Senate and U.S. House of Representatives by Senator 
Jeff Merkley (D-OR) and Rep. Carolyn Maloney (D-NY), 
respectively.\18\ The Senate Committee on Health, Education, 
Labor, and Pensions voted unanimously to advance the PUMP for 
Nursing Mothers Act, as amended, in May 2021.\19\ The House 
Education and Labor Committee also advanced a version of the 
bill in May 2021, and the full U.S. House of Representatives 
passed the amended bill in July 2021 by a vote of 276-149.\20\ 
On December 22, 2022, the Senate voted in favor of the final 
version of the PUMP for Nursing Mothers Act as an amendment to 
the Consolidated Appropriations Act, 2023 by a roll call vote 
on the amendment of 92-5.\21\
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    \17\Consolidated Appropriations Act, 2023, supra note 15; S. Amdt 
6595, 117th Cong. (2022).
    \18\PUMP for Nursing Mothers Act, S. 1658, 117th Cong. (2021); PUMP 
for Nursing Mothers Act, H.R. 3110, 117th Cong. (2021).
    \19\Senate Committee on Health, Education, Labor and Pensions, 
Executive Session: S. 1675, Maternal Health Quality Improvement Act; S. 
1491; S.1662; S. 1301; S. 610; and S. 1658, 117th Cong. (May 25, 2021); 
Chair Murray: HELP Committee Unanimously Passes Bipartisan Bills to 
Address Maternal Mortality Crisis, Support Mental Health of Health Care 
Workers, And More (May 25, 2021).
    \20\U.S. House of Representatives, Committee on Education and 
Labor, Providing Urgent Maternal Protections for Nursing Mothers Act, 
H. Rept. 117-102 (July 22, 2021); U.S. House of Representatives, Roll 
Call Vote on Passage of H.R. 3110 PUMP for Nursing Mothers Act (Oct. 
22, 2021) (276 yeas, 149 nays).
    \21\U.S. Senate, Roll Call Vote on Merkley Amendment No. 6595 (Dec. 
22, 2022) (92 yeas, 5 nays).
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    Moving the pumping accommodation requirements to section 
18D of the FLSA expanded coverage to millions of working 
mothers, but also resulted in federal employees of the 
legislative branch losing coverage due to a technical 
oversight. Currently, section 203 of the CAA applies section 7 
of the FLSA to legislative branch employees but does not 
mention the recently established section 18D. The PUMP 
Technical Correction Act makes a necessary correction to the 
labor standards section of the CAA by adding ``section 18D'' to 
the list of FLSA provisions that apply to legislative branch 
employees. This bill would provide pumping-related protections 
to nursing mothers who work in offices associated with 
Congress, regardless of whether or not their position qualifies 
for overtime.

                        III. Legislative History

    Senator Jeff Merkley (D-OR) introduced S. 2219, the PUMP 
Technical Correction Act, on July 10, 2023, with original 
cosponsors Senator Lisa Murkowski (R-AK) and Senator Amy 
Klobuchar (D-MN). The bill was referred to the Committee on 
Homeland Security and Governmental Affairs.
    The Committee considered S. 2219 at a business meeting on 
July 26, 2023. During the business meeting, S. 2219 was ordered 
reported favorably by roll call vote of 8 yeas to 1 nay, with 
Senators Peters, Hassan, Sinema, Rosen, Ossoff, Blumenthal, 
Lankford, and Scott voting in the affirmative and Senator Paul 
voting in the negative. Senators Carper, Padilla, Johnson, 
Romney, Hawley, and Marshall voted yea by proxy, for the record 
only.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section establishes the short title of the bill as the 
``PUMP Technical Correction Act.''

Section 2. Breastfeeding accommodation coverage for certain 
        congressional employees

    This section amends section 203(a)(1) of the Congressional 
Accountability Act of 1995, which applies provisions from the 
Fair Labor Standards Act of 1938 to employees covered by the 
CAA. The text adds ``section 18D'' to the list of FLSA 
provisions that apply to legislative branch employees. Section 
18D of the FLSA establishes pumping accommodation requirements 
for employers, including to provide a reasonable amount of 
break time and appropriate facilities to nursing mothers to 
express milk.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate




    S. 2219 would amend the Congressional Accountability Act to 
expand access to breastfeeding accommodations to employees of 
the Congress. Specifically, the bill would apply a provision in 
the Fair Labor Standards Act granting such accommodations to 
cover Congressional employees.
    CBO estimates that the cost of any violations of those 
protections, together with administrative costs for the 
legislative branch to implement the bill would not be 
significant. Any spending would be subject to the availability 
of appropriated funds.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by Chad Chirico, Director 
of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 2--THE CONGRESS

           *       *       *       *       *       *       *


CHAPTER 24--CONGRESSIONAL ACCOUNTABILITY

           *       *       *       *       *       *       *



Subchapter II--Extension of Rights and Protections

           *       *       *       *       *       *       *



PART A--EMPLOYMENT DISCRIMINATION, FAMILY AND MEDICAL LEAVE, FAIR LABOR 
    STANDARDS, EMPLOYEE POLYGRAPH PROTECTION, WORKER ADJUSTMENT AND 
RETRAINING, EMPLOYMENT AND REEMPLOYMENT OF VETERANS, AND INTIMIDATION

           *       *       *       *       *       *       *


SEC. 1313. RIGHTS AND PROTECTIONS UNDER FAIR LABOR STANDARDS ACT OF 
                    1938.

    (a) Fair Labor Standards.--
          (1) In general.--The rights and protections 
        established by subsections (a)(1) and (d) of section 6, 
        section 7, [and section 12(c)] section 12(c), and 
        section 18D of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 206(a)(1) and (d), 207, 212(c), 218d) shall 
        apply to covered employees.

           *       *       *       *       *       *       *


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