The Wage and Hour Division of the U.S. Department of Labor has issued a new Fact Sheet setting out requirements for employers to provide reasonable breaks during the work day to nursing mothers who need to express their breast milk.
The break time requirement for nursing mothers went into effect on March 23, 2010, with enactment of the Patient Protection and Affordable Care Act. That Act (part of the Obama Administration’s healthcare reform efforts) amended the overtime pay provisions of Section 7 of the Fair Labor Standards Act (“FLSA”), which requires, in part, that nonexempt employees be paid at the rate of one and one-half times their regular hourly rate for all hours worked beyond 40 in a work week.
Employers are now required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The duration and frequency of the breaks will depend upon the particular needs of the employee. As long as the duration and frequency are reasonable, breaks cannot be denied.
The amendment also requires that employers provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” If an employer does not have a dedicated location for nursing mothers, it can create a temporary space as long as it provides privacy from coworkers and the public and is shielded from view.
The break time requirement has a number of caveats. First, it only applies to nonexempt employees; i.e., those who are subject to FLSA’s overtime pay requirements. Employers are not required under FLSA to provide nursing breaks to exempt employees. Second, employers are not required to pay employees who take breaks to express their milk. But, if an employer compensates employees for other types of breaks, and an employee uses such a break to express her milk, she must be paid the same as other employees on break. Third, employers with fewer than 50 employees do not have to provide breaks to nursing mothers if doing so would impose an undue hardship. Whether an undue hardship exists “is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.” The 50-employee threshold is determined by counting all of an employer’s employees, regardless of their physical location.
Finally, the new FLSA break time requirement does not preempt state laws that provide greater protection to employees. According to a March 2010 report by the National Conference of State Legislatures, 24 states, plus the District of Columbia, and Puerto Rico currently have statutes related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wyoming). Many of these states extend break time to all employees, regardless of an employer’s size, require that the break time be paid, or extend the period for taking breaks beyond the one-year limit under FLSA.
Employers in states with existing laws governing breastfeeding in the workplace should have little trouble complying with the new federal law. Employers in states without such laws must adjust their policies and procedures to insure that they are in compliance with the new federal requirement.