A little noticed provision tucked into the health care reform bill passed by Congress in March 2010 will require most employers to provide nursing mothers with break time and an appropriate place to express milk. The new requirement is an amendment to the Fair Labor Standards Act (“FLSA”), the federal law that governs the payment of a minimum wage and overtime.
Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to 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.” The new law is effective immediately.
Where and When Breaks Have To Be Provided
Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.
A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.
A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient, provided that the space is shielded from view and free from any intrusion from co-workers and the public. Spaces can be made free from intrusion by any means sufficient for a particular work place, so long as it is effective to endure privacy. In some workplaces or locations an “In Use” sign may be sufficient, while in other work environments, a lock may be necessary. Employers should use common sense as a guide.
Covered Employees and Employers
Eligible Employees. Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required to provide breaks to nursing mothers who are exempt from the FLSA’s overtime pay requirements, they may be obligated to provide such breaks under some state laws. (See below).
Covered Employers. Because it is part of the FLSA, the break time requirement applies to virtually all employers, regardless of size. A limited exception applies to employers with fewer than 50 employees who can demonstrate that compliance with the provision would impose an “undue hardship.” (All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption applies). Like the Americans with Disabilities Act, the new law does not precisely define “undue hardship.” Instead, whether compliance would be an undue hardship 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.
Paid and Unpaid Break Time
Employers are not required to compensate nursing mothers for breaks taken to express milk. An employee who uses her paid break time to express milk, however, must be compensated. The general FLSA requirement that an employee must be completely relieved from duty during a break, or else compensated for the break as work time, applies to breastfeeding breaks.
Employers Must Also Comply With State Laws On Breastfeeding
The National Council of State Legislatures reports that twenty-four states, Puerto Rico and the District of Columbia currently have laws related to breastfeeding in the workplace. (Maryland has no law related to breastfeeding in the workplace). State laws that provide greater protection to employees are not preempted by the new federal requirement.
What Employers Should Do Now
Employers must ensure that supervisors are aware of the new law so that they do not inadvertently deny a nursing mother her rights. Even if not currently needed, employers should also ensure that a private space for expressing milk will be available when needed.
If you need help developing a break time policy or assessing your compliance with this or any FLSA provision, contact:
Chuck Bacharach Bob Kellner