• Giving Nursing Moms a Break: Mandatory “Reasonable Break Times” Under Federal Law
  • July 13, 2011 | Author: Kristina N. Klein
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • Quietly included in last year’s healthcare law was a change to the Fair Labor Standards Act (FLSA) that required employers of non-exempt hourly employees to provide “reasonable break time” for nursing mothers. Under the new law, employers must allow nursing moms breaks to express breast milk for up to one year after her child’s birth. Employers are also required to provide a private place, other than a bathroom, for the nursing moms’ use. This new requirement became effective on March 23, 2010.

    In December 2010, the Department of Labor (DOL) issued preliminary interpretations of the new law and requested public input from employers, employees and other stakeholders on  issues raised by the new law, including the following:

    • Who Must Comply?

    Basically, all employers. According to the DOL, employers with 50 or more employees must comply with the law without exception (and without regard to how many employees are at a specific worksite or within a geographic area). Employers with fewer than 50 employees are also expected to comply with the law unless they can show that compliance with the law would be an “undue hardship” or, in other words, “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” 

    • Is Compensation for the Break Time Required? 

    Generally, no. Employers are not required to compensate nursing moms for this break time. However, if the employer already provides compensated breaks, a nursing mom who uses the allotted break time to express milk must be compensated the same as other employees taking the break for any other reason.

    • How Long is a “Reasonable” Break Time? 

    The law requires employers to provide a reasonable break time as frequently as the nursing mom needs to express milk. According to the DOL, nursing moms typically needs two to three breaks during an eight hour shift, of 15 to 20 minutes per break. In determining whether the overall break time needed is “reasonable,” employers must consider factors including the time needed to walk to and from the lactation space, whether a sink and running water is nearby, and the time needed for the employee to store her milk either in a refrigerator or personal cooler.

    • Is a Private Room Required?

    Yes.  However, there may be circumstances in which it is not practicable to provide a private room. In those instances, employers can meet the requirement by creating a space with partitions or curtains and covered windows to ensure that the space is “shielded from view.” A bathroom does not meet the requirements of the new law; however, an anteroom or lounge area connected to the bathroom may be sufficient so long as the space allows for privacy and is free from intrusion from coworkers and the public. Locker rooms that function as changing rooms may also be adequate, but because of their proximity to bathrooms, may not be appropriate based on health and sanitation concerns. At a minimum, the space must have a place for the nursing mom to sit and a flat surface (other than the floor) on which to place the pump.

    • Do Moms Need to Provide Notice?

    To facilitate an employer’s ability to provide an appropriate space, the DOL encourages nursing moms to provide employers advance notice of their intent to take breaks. While the DOL believes that a simple conversation between the employee and a supervisor or human resources representative would facilitate an employer’s ability to make arrangements, it sought comment on this issue. The DOL also noted that an employer may ask an expectant mother if she intends to take breaks to express milk at work, reasoning that doing so would inform the employee of her rights under the law.

    • Is there a Penalty for Non-Compliance?

    Where violations are found, the DOL may recommend changes in practices to bring an employer into compliance. While the FLSA does not specify any penalty if an employer is found to have violated the break time law, if an employer refuses to comply with the law, the DOL may seek injunctive relief in federal district court, and may obtain reinstatement and lost wages for the employee. Also, if an employer treats nursing employees who take breaks to express milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for discrimination under Title VII. 

    By the end of February 2011, and in response to the preliminary interpretations above, the DOL received almost 2,000 comments. Many of these comments came from women who detailed their difficulties finding sufficient time and space to express milk at work. For example, one commenter stressed that milk demands vary by child and that a nursing mom could need “up to two hours a day to pump.” Lactation consultants commented on the importance of a private and clean space and one calculated that a population of 1,000 employees would require six lactation spaces. Several employers commented that they should have a right to contact a doctor or request medical certification if nursing moms request extended breaks beyond 30 minutes. And the Society for Human Resources Management (SHRM) commented that employers should not have to ask an expectant mother if she intends to take these breaks (as this can be seen as an invasion of privacy), and suggested that employees be required to give employers a minimum 10 days notice of their desire to take such breaks. 

    The public comment period has concluded, and the DOL is now developing final rules. Until that time, the preliminary interpretations above provide useful information for establishing policies for break time for nursing moms.