One of the odder add-ons to the health care reform law requires employers to provide nursing mothers with unpaid “reasonable break time” each work day to express breast milk for up to one year after a child’s birth. Section 4207 of the law amends the Fair Labor Standards Act (FLSA) to require employers to provide a break each time an employee needs to express milk, in a location that is “shielded from view and free from intrusion by coworkers and the public.” And it’s not allowed to be a bathroom, even a nice one.
The provision took effect in March 2010. In July 2010, the U.S. Department of Labor (DOL) released a fact sheet, that said: (1) employers should provide break time to express milk “as frequently as needed by the nursing mother”; (2) the frequency and duration of the breaks will “likely vary” among mothers; and (3) the location provided must be a “functional space” for expressing milk, but need not be dedicated solely for a nursing mother’s use, as long as it is available whenever needed. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship.
If your state has a stronger provision for nursing mothers than the FLSA amendment, then the stronger state requirements will apply.
In a Dec. 21, 2010, Federal Register notice, DOL stated that the law requires space and time for unpaid breaks for one year after a child’s birth. The DOL also stated that the frequency of breaks needed to express breast milk varies depending on such factors as the baby’s age. The DOL said it expects nursing mothers typically will need breaks to express milk two to three times during an eight-hour shift. The act of expressing breast milk typically takes about 15-20 minutes, after which employers can invoke unpaid leave, but that 15-20 minutes can be extended because of factors like walking to the location and packing and unpacking breast pumps.
No Breaks for Moms Who Are FLSA-Exempt
As the rule stands, employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime requirements (section 7) of the act. But employers in states that do not provide that safe harbor still have to provide breaks under state law.
And the right to express milk could continue to grow under the Breastfeeding Promotion Act of 2011 (H.R. 2758; and S. 1463).
Under the bill, the requirement to give unpaid leave for breastfeeding breaks would now: (1) apply to exempt female employees under the FLSA; and (2) contain new anti-retaliation provisions under Title VII of the Civil Rights Act to prohibit employers from terminating or otherwise discriminating against an employee who expresses milk during lunch or break times.