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FLSA Requires Break Times for Nursing Mothers

Breaks Now Required for Nursing Mothers

If you are like most employers, you probably have not had time to consider the many new obligations imposed in the 2,000-plus pages of the Patient Protection and Affordable Care Act. Most of the provisions that substantially change how health care will be provided in this country do not take effect for several years, beginning in 2014.

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But, there is one provision buried within the Act that already affects almost every employer in the United States. The FLSA amendment requiring breaks for nursing mothers had an effective date of March 23, 2010, the date the Act was signed into law. This means that most employers are now required to provide employees who are new moms with breaks to express milk during the workday. Below, you will find an explanation of the new work break requirements, plus several reasons you should implement these employee break times in your workplace even if you are not covered by the new FLSA nursing amendment.

(Download a free rest breaks model policy including HR best practices and legal background.)

New Work Break Policies and Requirements Explained

Specifically, employers with 50 or more employees are required to provide a nursing mother with “a reasonable break time” to express breast milk each time the employee needs to express milk for up to a year after her child’s birth. In addition, the provision requires employers to provide a place other than a bathroom that is private where the employee may express milk. The place must be “shielded from view” and “free from intrusion from coworkers and the public.” Although the Patient Protection and Affordable Care Act does not define what a “reasonable” break time period is, it does indicate that an employee does not have to be paid for the time.

Smaller employers with less than 50 employees are not entirely off the hook. The Patient Protection and Affordable Care Act states that these employers will not be covered by the requirements if they can show that the breaks would cause an “undue hardship by causing the employer significant difficulty or expense.” An employer’s size, financial resources, nature, or structure will be considered to determine whether undue hardship exists. Again, the Act does not define “undue hardship” beyond these descriptions, but the standard appears fairly difficult to meet.

Finally, the new provision also indicates that employers still must comply with any state law providing greater protections to nursing mothers. Several states, including California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Maine, Minnesota, New Mexico, New York, Oregon, Tennessee, Vermont, and the District of Columbia, require employers to allow nursing mothers unpaid breaks to express milk during the work day.

Full Text of FLSA Nursing Amendment

The new requirement has been added to the Fair Labor Standards Act as new section 29 U.S.C. §207(r). Here is the full new section, for your reference:

“(r) Reasonable break time for nursing mothers.

(1) An employer shall provide--

(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and

(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.”

Practical Reasons for Breaks Support Need for Workplace Policies

Beyond the new legal requirement, there are many practical reasons for trying to accommodate new mothers who are breastfeeding. New mothers who cannot express milk at work and store it for later use are faced with the difficult choice of not breastfeeding, taking longer leaves, or even quitting their jobs. Therefore, accommodations to allow breastfeeding women to express and store breast milk during the workday can help make the transition back to work easier and quicker and improve retention rates.

(Download a free rest breaks model policy including HR best practices and legal background.)

Employers that implement policies to support breastfeeding also may see a decline in lost workdays for new mothers because their babies are in better health. In fact, according to the American Academy of Pediatrics AAP, which recommends that women breastfeed their infants for at least 12 months after birth, recent studies show that breastfed infants have better immune systems, have fewer respiratory and ear infections, and may be better protected from sudden infant death syndrome. So, a lactation program can be a win-win for your new-mom employees returning from pregnancy leave and your organization, and it will help you comply with these new FLSA break requirements.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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