With the recent emphasis on the Pregnancy Discrimination Act (PDA) regarding employers’ affirmative duties to pregnant employees, it is important for employers to remember that they also have obligations when employees return to work after childbirth. Specifically, under the Fair Labor Standards Act (FLSA) and the Affordable Care Act (ACA), employers have certain obligations to nursing mothers. 
What’s required of employers?
The enactment of the ACA in March 2010 amended the FLSA to require employers to provide a reasonable amount of break time for nursing mothers to express breast milk as frequently as needed for up to one year following the birth of a child. Nursing mothers must be provided with a place (other than a bathroom) to express milk, and the space must be shielded from view and free from intrusion.
Time and space to express milk must be provided as often as needed. Accordingly, the frequency and duration of breaks will vary from employee to employee. Although you aren’t required to dedicate a permanent space for expressing breast milk, the space must be available when needed. Additionally, if you have no employees who need to express breast milk at work, then you don’t have to make a space available (much less have a space that is dedicated to breastfeeding).
All employers covered by the FLSA must provide reasonable breaks for nursing mothers who are not exempt from Section 7 of the Act. However, employers that have fewer than 50 employees and can demonstrate that compliance would impose an undue hardship are not required to comply. The U.S. Department of Labor (DOL) encourages all employers to provide reasonable breaks for nursing mothers, regardless of FLSA status.
Employers aren’t required to compensate nursing mothers for breaks to express milk unless they already provide paid breaks. In that case, nursing mothers who use breaks to express milk must be compensated in the same way other employees are. Additionally, if a nursing mother is not completely relieved of her duties during breaks, she must be compensated for the time under the FLSA.
Note that nothing in Section 7 preempts state laws that provide greater protections to employees than federal law. For example, a state law that requires reasonable break time for more than one year, a dedicated lactation room, break time for exempt employees, or compensated break time is not preempted because it provides greater protection to employees.
An increase in returning mothers?
The ACA also includes a provision requiring insurance companies to cover breast pumps and visits to lactation consultants at no cost to patients. Thus, you should expect the number of nursing mothers returning to the workplace to increase. Be aware that because of this provision, more employees may need break time and an appropriate place to express milk.
Bottom line
Your duties to pregnant employees do not end with childbirth. Be prepared when a nursing mother returns to work after maternity leave. Before an employee begins maternity leave, consider how you will meet the requirements for “reasonable break time for nursing mothers.”
Michelle Dougherty is an attorney with Steptoe & Johnson PLLC, practicing in the firm’s Wheeling, West Virginia, office. She may be contacted at michelle.dougherty@steptoe-johnson.com.