On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law. One of the lesser known provisions of this Act is an amendment to the Fair Labor Standards Act (“FLSA”) that requires covered employers to provide reasonable break time for non-exempt nursing mothers. Nothing in the new provision alters state or federal prohibitions against discrimination based on pregnancy, childbirth, and related medical conditions during pregnancy.
How often must employers afford break time to nursing mothers?
Employers must provide nursing employees with breaks to express breast milk for one year following a child’s birth. While the amendment is silent on the number and duration of breaks that must be allowed, the Department of Labor Fact Sheet informs that breaks may be taken “as frequently as needed by the nursing mother,” and that “the duration of each break will likely vary.”
What type of space must the employer provide?
The employer must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” for the nursing mother to express her milk. While the space need not be exclusively dedicated for the nursing mothers’ use, it must be available when needed.
Must the Break Be Paid?
No, the break may be unpaid. However, if the employer provides paid breaks, the nursing mother must be compensated in the same way that other employees are paid for break time. Also note that if the employer chooses not to pay for break time, the FLSA requires that the employee be completely relieved of all duties.
Does this Law Apply to All Employers?
Small employers — those with fewer than 50 employees — are exempt from this provision if complying would impose an undue hardship. An undue burden is one that causes “the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
Employers should note, however, that in determining whether this size exemption applies, the Department of Labor considers the aggregate number of employees who work for the employer, regardless of the number of employees working at a particular work site.
- Inform managers and supervisors about the requirement to provide reasonable break times for nursing employees;
- Revise break policies to reflect these requirements, and train managers and supervisors with respect to the new break policies;
- Ensure that nursing employees are not retaliated against for taking reasonable break time;
- Consider areas of the employer’s premises that may be suitable for use as a lactation room, keeping in mind that the space must be shielded, and free from intrusion from co-workers and the public. The lactation room should include, at a minimum, a chair, an electrical outlet to accommodate a breast pump, and a lock on the door.
Read more about the FLSA here.