"Reasonable Break Time" Required for Nursing Mothers
May 2, 2010
by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010
Updated August 8, 2010
Employers must provide "reasonable break time" for a non-exempt employee 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 – according to a provision (Section 4207) in the newly enacted health care reform law.
A new fact sheet containing general information on the break time requirement for nursing mothers, as required under the new health care reform law, was released by the Department of Labor in July 2010.
Frequency and Duration of Breaks – Employers are required to provide a reasonable amount of break time for non-exempt employees to express milk as frequently as needed by the nursing mother. "The frequency of breaks needed to express milk as well as the duration of each break will likely vary."
Location of Breaks – A bathroom, even if private, is not a permissible location for such breaks. "The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public."
The Breaks Need Not be Paid – "Employers are not required under the Fair Labor Standards Act (FLSA) to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies."
Exception for Small Employers – An employer that employs less than 50 employees is not subject to the new law 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.
Only Applies to Non-Exempt Employees – The new law was added at the end of Section 7 of the Fair Labor Standards Act, and thus only applies to non-exempt and hourly paid employees. Employees who are exempt from the overtime pay provisions under Section 13 of the FLSA are not covered by the new federal law requiring reasonable break time for nursing mothers. However, employees may be covered by state law
Does Not Preempt State Law – These new requirements do not preempt a state law that provides greater protections to employees than the protections provided under the new federal law. According to the National Conference of State Legislatures, 24 states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming).
Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.
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