Break Time for Nursing Mothers Required Under the FLSA

A little-known provision of the 2010 Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) to require employers to provide “reasonable break time” for nursing mothers to express breast milk at work. This rule became effective on March 23, 2010. As it appears that few employers are aware of this rule, we are passing information regarding the break time requirements to our subscribers through this e-alert.

The law requires employers subject to the FLSA to provide unpaid, reasonable break time for an employee to express breast milk in a private place for one year after her child’s birth. The Act defines “private place” as a place, other than a bathroom, that is shielded from view and free from intrusions from co-workers and the general public, which may be used by an employee to express breast milk.

In response to numerous questions from employers about their obligations to provide reasonable break time, the U. S. Department of Labor, Wage and Hour Division, issued the a Fact Sheet to discuss the key provisions, such as the excerpts below:

Time and Location of Breaks

Employees are required to provide a reasonable amount 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.

Coverage and Compensation

Only employees who are not exempt from section 7, which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of Section 7, they may be obligated to provide such breaks under State laws.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA.

Other important considerations include the following:

Undue Hardship: The rule provides an exemption for employers with fewer than 50 employees if compliance with the rule would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” The Department of Labor will not grant prospective undue hardship exemptions and expects that employers will be able to successfully invoke the exemption “only in limited circumstances.”

Relationship to the Family Medical Leave Act: Breaks taken to express breast milk are not to be considered or counted toward leave under the Family Medical Leave Act (“FMLA”).

Where to Obtain Additional Information: For additional information, you may contact the author of this article, Robin Repass, or members of Jackson Kelly PLLC’s Labor and Employment Law Practice Group.