The Department of Labor (the “DOL”) has issued Fact Sheet #73, which provides guidance on the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (“PPACA”). This requirement took effect when the PPACA was signed into law on March 23, 2010. The requirement is found in Section 7 of the Fair Labor Standards Act (the “FLSA”). The Fact Sheets says the following.
General Rules. An employer is required to provide reasonable break time for an employee to express breast milk for her nursing child, for 1 year after the child’s birth, each time the employee has need to express the milk. The employer is also required to provide 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 the employee to express breast milk. The FLSA rule does not preempt any State law providing greater rights.
Time and Location of Breaks. An employer is required to provide a reasonable amount of break time to express milk as frequently as is needed by the nursing mother. The frequency and duration of breaks will likely vary. A bathroom, even if private, is not a permissible location for the break. 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. A space temporarily created, 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.
Coverage. Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk under the FLSA. Employers with fewer than 50 employees are not subject to the FLSA break time requirement, if compliance with the requirement would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Compensation. The FLSA does not require employers to compensate nursing mothers for breaks taken to express milk. However, where an employer already provides 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. Further, the FLSA requires that the employee must be compensated for time spent on the break, unless the employee is completely relieved from duty during the break.