A Break for Nursing Mothers

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act into law. One of the lesser known provisions of this Act is an amendment to the Fair Labor Standards Act (“FLSA”) that requires covered employers to provide “reasonable break time for nursing mothers.” Nothing in the new provision alters state or federal prohibitions against discrimination based on pregnancy, childbirth, and related medical conditions during pregnancy. Effective immediately, employers must provide nursing employees with breaks to express breast milk for one year following a child’s birth. The amendment is silent on the number and duration of breaks that must be allowed and does not require that the breaks be paid. The employer also must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” for the nursing mother to express her milk. Small employers — those with fewer than 50 employees — are exempt from this provision if complying would impose an undue hardship. An undue burden is one that causes “the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Employers should note that the Amendment does not preempt any state law that provides similar or greater protections to nursing mothers.

Literally read, the “Reasonable Break Time for Nursing Mothers” provision does not appear to apply to employees who are “exempt” from the overtime provisions of the FLSA (such as executive, administrative, and professional employees). Nonetheless, this may be a drafting oversight and the Department of Labor has not yet issued implementing regulations. Thus, the safest approach is to offer all nursing employees the benefits of the act, especially since it must provide those benefits to non-exempt employees in any event. Once the Department of Labor issues its regulations, employers may be required to include a statement about the provision in their company’s handbook and hang posters regarding a nursing employee’s rights.

Even though employers do not yet have clear guidance from the Department of Labor about compliance, employers should, at a minimum:

• Inform managers and supervisors about the requirement to provide reasonable break times for nursing employees;
• Revise break policies to reflect these requirements, and train managers and supervisors with respect to the new break policies;
• Ensure that nursing employees are not retaliated against for taking reasonable break time;
• Consider areas of the employer’s premises that may be suitable for use as a lactation room, keeping in mind that the space must be shielded, and free from intrusion from co-workers and the public. The lactation room should include, at a minimum, a chair, an electrical outlet to accommodate a breast pump, and a lock on the door.