On March 23, 2010, President Barack Obama signed the health care reform bill ― officially known as the Patient Protection and Affordable Care Act. Part of the Act that didn’t get much media attention affects nursing mothers in the workplace. Specifically, the Act requires a covered employer to provide an employee who is nursing and not otherwise exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements with “reasonable break time . . . to express breast milk for her nursing child for [one] year after the child’s birth each time such employee has need to express the milk.”
The provision immediately amended the FLSA and applies to all employers that are FLSA-covered (which is most employers). The U.S. Department of Labor (DOL) has not yet prepared regulations detailing requirements under the law, but Fact Sheet #73, titled “Break Time for Nursing Mothers under the FLSA” and other general information is provided at www.dol.gov/whd/nursingmothers.
The specifics
There are a few things you need to know about the law. First, although breaks lasting less than 20 minutes must be paid under the FLSA, breaks to express breast milk need not be paid. However, if you provide paid breaks to other employees, you must pay employees who use those breaks to express milk. Nursing mothers may take longer breaks more often to express milk, but they do not have to be paid for the extra breaks or break time so long as they are completely relieved of their job duties during the break.
Second, you may not dictate when an employee takes breaks to express breast milk. Reasonable breaks must be available whenever an employee needs to express breast milk during working time. The time and length of the breaks may vary.
Finally, you must offer employees a private place to express milk. A “place” is a location “shielded from view and free from intrusion from coworkers and the public.” The law specifically excludes bathrooms as an appropriate place. The location provided must be functional as a space for expressing breast milk. That means it should have an electrical outlet and some seating. It needs to have a lock on the door to prevent intrusions. Although not required by the law or the DOL, you can go a step farther and provide a refrigerator, a sink, and perhaps computer access so the employee can continue working if she chooses (note that if she is working, you must pay her). While the place doesn’t have to be dedicated to nursing mothers, it must be available to nursing mothers when needed.
One exception
Employers with fewer than 50 employees, counting all locations, may be exempt from the requirements if compliance would impose an “undue hardship,” which will likely be difficult to prove. You must show that you would incur significant difficulty or expense in complying with the requirements when taking into account the “size, financial resources, nature or structure” of the employer’s business. Multisite employers with 50 or more employees may not assert the exception to particular sites, even if they have only a few employees at those sites.
Bottom line
The law applies only to nonexempt employees. Exempt employees do not have to be provided with breaks to express milk under federal law. However, you can’t deduct time spent on breaks by exempt employees without jeopardizing their exempt status. Thus, exempt nursing mothers would be able to take break time to express breast milk. 
It’s important to note that the federal provision doesn’t preempt more generous state laws.
Jeff Hurt is special counsel with Foulston Siefkin in the Wichita, Kansas, office. He may be contacted at jhurt@foulston.com.