FLSA Amended to Require Unpaid Break Time for Nursing Mothers

August 02, 2010

Employers should take note of the recently enacted federal healthcare legislation known as the Patient Protection and Affordable Care Act, which amends the Fair Labor Standards Act (FLSA) to require employers to provide unpaid break time for nursing mothers to express breast milk. Although several states have had similar legislation in place, this is a new requirement for employers in many states.

The new legislation recognizes that regular work breaks may not provide nursing mothers with adequate time (or a place) to express their milk. To address this issue, the Congress passed this law to cover employees who are not exempt from overtime under the FLSA requiring employers to provide “a reasonable amount of break time to express milk as frequently as needed by the nursing mother.” This lack of specificity as to the length and number of breaks recognizes that nursing moms’ needs may vary. Employers must provide these breaks for up to one year after the birth of a child. In addition, employers must designate a private location to serve as a space for expressing breast milk, which is not a bathroom, and is free from intrusion from co-workers and the public.

The United States Department of Labor recently published a “Fact Sheet” with general information to help employers comply with this new FLSA requirement.

There are a few exceptions to these requirements. Employers with fewer than 50 employees who will suffer an undue hardship as a result of these breaks are exempt from these requirements. Also, the law does not apply to exempt employees, presumably because they control their own schedules; certainly exempt employees may benefit from the creation of a private place for expressing breast milk.

This new federal law does not preempt state laws providing rights to nursing mothers; where state law is more protective of employees, employers must continue to comply with the laws affording greater protection to employees. For example, under California law, in addition to providing a private place and break time, employers must provide a place to store the expressed milk. Likewise, under New York law employers must provide unpaid breaks for up to three years following childbirth as opposed to the one year provided by this new legislation. 

Significance for Employers

For employers who have employees in states not already requiring nursing breaks, policies should be examined and training provided to managers so they are aware of these new requirements. In addition, employers should identify a private and clean place for these breaks to occur.


For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:

John Adkins,, 617.951.8551
Jenny Cooper,, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group,, 617.951.8340

Los Angeles/Orange County
Jacqueline Aguilera,, 213.229.8439
Debra Fischer,, 213.680.6418

San Francisco
James Severson,, 415.393.2242

New York
Douglas Schwarz,, 212.705.7437

Mie Fujimoto,, 81.3.6721.3138

This article was originally published by Bingham McCutchen LLP.