FLSA is Amended to Provide Nursing Mothers with Reasonable Breaks in Private Space

Tamera M. Woodard
August 4, 2010 — 2,368 views  
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A new amendment to Section 7 of the Fair Labor Standards Act ("FLSA") requires employers to provide "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth." The law went into effect on March 23, 2010, with the passage of the Patient Protection and Affordable Care Act ("PPACA"). The amendment addresses three major areas that will require attention and in some cases, action, by employers: time, privacy and compensation.

Under the amendment, the employer must provide the nursing mother with a nursing break "each time" she has a need to express breast milk. The statute does not define what constitutes a "reasonable" break time, nor does it set a maximum amount of time that a nursing mother may spend on breaks. A recently issued fact sheet issued by the Department of Labor (DOL) explains that the "frequency of breaks needed to express milk as well as the duration of each break will likely vary." See Fact Sheet #73: Break Time for Nursing Mothers under the FLSA ("Fact Sheet #73").

Employers must provide the nursing break in a place "that is shielded from view and free from intrusion from coworkers and the public." Bathrooms, even if private, are not adequate locations under PPACA. Employers need not create a permanent space, but if a temporary space is used it must be available whenever it is needed by the nursing mother. Employers who do not already have a dedicated space for nursing mothers should immediately make arrangements to find a suitable private location.

PPACA does not require the employer to compensate a nursing mother for "any work time" spent on the nursing break, provided that the employer does not have a general practice or policy of compensating employee break time. Employers that already provide compensated breaks may not discriminate against nursing mothers, but must compensate nursing mothers in the same manner as all other employee breaks are compensated. Given that current Department of Labor regulations currently provide that an employer must compensate employees for rest breaks of short durations — 5 to 20 minutes depending on the industry — nursing breaks of similar duration must be covered as well. Although the statute is silent on which employees are covered by the break requirement, Fact Sheet #73 clarifies that only non-exempt employees are entitled to break time.

By its express terms, PPACA does not preempt state laws that provide greater protection to nursing mothers. At least 24 states, Washington, D.C., and Puerto Rico have enacted laws that provide some level of protection to nursing mothers; among these, many provide greater protection than PPACA. For example, some states require that the break time be compensated; extend the break time to exempt employees; provide break time for more than one year after the child's birth; have more specific requirements on appropriate locations; or require that employers provide employees who are returning to work from maternity leave with written notice of their right to take a nursing break. Conversely, many states have laws that require less from employers. For example, some states only require employers to make a "reasonable effort" to find a private location, or provide employers the option of postponing the break for up to 30 minutes due to a business necessity. PPACA appears to completely preempt these laws that provide less protection.

Finally, PPACA includes a safe harbor provision for employers with less than 50 employees, who can demonstrate that complying with the nursing mother break requirement would impose an undue hardship. Whether compliance rises to the level of an undue hardship is determined by evaluating the difficulty or expense of complying, when compared to the employer's size, financial resources, nature, and business structure. All employees, even those who work in different locations, and presumably those who work part-time, are counted for the purpose of determining whether the 50-person threshold is met.

For more information on the new amendment to the FLSA, for assistance with reviewing current policies and procedures to ensure compliance with the amendment, or to determine whether your state has enacted any laws related to nursing mothers, contact a Schiff Hardin Labor and Employment attorney. The DOL Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, can be accessed at www.dol.gov/whd/regs/compliance/whdfs73.htm

Tamera M. Woodard