• Break Time Requirements for Nursing Mothers
  • December 30, 2010 | Author: Catherine A. Tracey
  • Law Firm: Miller Johnson - Grand Rapids Office
  • As the Healthcare Reform Act continues to generate more questions than answers, at least one thing is certain—nursing mothers will be given a break. In 2010, the Fair Labor Standards Act (FLSA) was amended by the Patient Protection and Affordable Care Act to require that employers provide nursing mothers with break time to express breast milk.

    This new provision applies to all employees who are not exempt from the overtime provisions of the FLSA (hourly or non-exempt employees) and all employers with 50 or more employees. However, the provision exempts employers with fewer than 50 employees only if compliance with the statute would impose an “undue hardship” causing the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Because the undue hardship standard is difficult to meet, small employers should be careful about assuming they fall within this exemption, and most employers will need to be aware of these new obligations.

    The law mandates that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express breast milk.” There is no guidance that outlines reasonable intervals for nursing breaks, so it will likely be difficult for an employer to challenge an employee’s stated need to express breast milk.

    In addition to providing the break time, employers must provide a “private place” that is “shielded from view and free from intrusion from co-workers and the public.” The law explicitly states that the private place may not be a bathroom and that, while the room need not be exclusively dedicated to nursing mothers, it must be made available whenever needed.

    Employers are not required to compensate employees for work time spent expressing milk. This seems fairly straightforward, but it can become complicated when an employee performs other work-related tasks during the nursing break or takes the nursing break in lieu of another permitted paid break.

    According to the Department of Labor (DOL), an employee must be “relieved of all duties” for an employer to avoid paying her during her nursing break. If the employee is required to answer the phone, read business-related e-mails or other correspondence, or perform any other job duties during the break, she must be compensated.

    Pay during nursing break time is further complicated by the FLSA’s requirement that an employee who takes a break of 20 minutes or less must be compensated for that time because it is still considered to be “hours worked.” So, an employee who takes a nursing break of 20 minutes or less may be entitled to compensation, even though the “nursing mother” amendment specifically states that these breaks need not be paid.

    Because the DOL has yet to elaborate on these requirements, the adequacy of any workplace nursing accommodations will need to be evaluated individually. For now, you should make sure employees are informed of their rights under the new law and that employee handbooks, policy manuals, and other communication materials are updated to be in compliance with the amended FLSA. Make sure your managers are trained about new break time policies and that a space is identified as an appropriate nursing mother break location.