FLSA Amended to Require Break Time for Nursing Mothers

Among the provisions of the sweeping federal health care legislation enacted earlier this year, the Patient Protection and Affordable Care Act (PPACA) amended Section 7 of the Fair Labor Standards Act to provide a new break-time requirement for nursing mothers who are non-exempt employees. A new fact sheet recently issued by the US Department of Labor’s Wage and Hour Division supplies employers with information regarding the requirements of the new law.

The PPACA requires employers to provide nursing mothers who are non-exempt employees with reasonable break time to express breast milk. Employers should be aware of the following specific requirements:

• The nursing mother amendment to the FLSA applies only to non-exempt employees (i.e., employees who are not exempt from the FLSA’s overtime pay requirements).
• An employer must allow a nursing mother a reasonable amount of break time to express milk for her nursing child for one year after the child’s birth as frequently as she needs to do so.
• The space made available for nursing mothers to express breast milk must be shielded from view, free from intrusion from co-workers and the public, and functional as a space for expressing breast milk. Notably, a private bathroom is not considered a permissible space for the nursing breaks. If a dedicated space is not utilized, the space must be available when needed by the nursing mother in order to meet the statutory requirement.

• Employers with fewer than 50 employees are not subject to the break time requirement if compliance with the provision would impose an undue hardship. All employees who work for the employer must be counted for purposes of the 50-employee rule, not only those who work at the location in question.
• Employers are not required under the FLSA to compensate nursing mothers who take breaks to express milk. However, where an employer already allows employees 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. Consistent with the FLSA’s general requirements, an employee must be completely relieved from duty during uncompensated break time.

Employers should be aware that the new FLSA amendments do not preempt state laws that provide greater protections to employees (for example, laws providing compensated break time, break time for exempt employees, or break time beyond one year after the child’s birth). Therefore, employers should also obtain legal advice regarding the relevant state law(s) to determine whether they are subject to stricter requirements.