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New DOL Guidance on Breaks for Nursing Mothers

August 2010

A recently issued Fact Sheet from the U.S. Department of Labor (DOL) provides guidance to employers for implementing one of the provisions of the Patient Protection and Affordable Care Act (PPACA), which requires that employers provide break time for nursing mothers.

This particular provision of the PPACA amends the Fair Labor Standards Act (FLSA) and became effective when the health care reform bill was signed into law on March 23, 2010. This FLSA amendment requires that an employer 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 such employee has need to express the milk.” The new law also requires that employers provide a private location for a nursing employee to express breast milk.

Under the law, a bathroom is not a permissible location even if it is private. The Fact Sheet provides that the designated location must be functional as a space for expressing breast milk. While it is permissible for the designated location to have a use other than for the nursing employee to express breast milk, the location must be available when needed in order to meet the requirements of the law. A location temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother will be sufficient under the law so long as the designated location is shielded from view, and free from any intrusion from other employees and the public.

The Fact Sheet also provides that employers with fewer than 50 employees may be excepted from this requirement if compliance would impose an undue hardship on the employer. Whether compliance would impose an undue hardship is determined by examining the difficulty or expense of compliance in comparison to the size, financial resources, nature and structure of the employer’s business. However, proving that compliance would constitute an undue hardship on the employer may be far more difficult than supposed: other federal laws with an undue hardship exception (such as the Americans with Disabilities Act) place the burden of proof on an employer seeking to show that compliance constitutes an undue hardship. Thus, a small employer is cautioned against lightly invoking this exception to avoid compliance.

Notably, as with the minimum wage and overtime provisions of the FLSA, exempt employees are not entitled to breaks for expressing breast milk. Further, as break time for expressing breast milk is not working time, the Fact Sheet provides that the employer does not need to compensate the employee for such break time unless the employer already provides compensation for other breaks offered to its employees. The Fact Sheet also reiterates the DOL’s policy that in order for such break time to be non-compensable, the employee must be relieved from performing any duties at all for the employer.

The Fact Sheet also reminds employers that it may have more stringent obligations under state laws. Twenty-four states have already enacted their own laws regarding breastfeeding in the workplace, including California, Connecticut, New York and Texas. Under the New York law, an employee is permitted breaks to express breast milk for up to three years following the birth of the child while the new federal law is only applicable for one year. The New York law provides further guidance as to the number and duration of breaks to express breast milk. Additionally, there is no undue hardship exception for small employers – the New York law applies to all employers. Finally, the New York law is available to all employees, exempt and non-exempt alike – any nursing employee is entitled to breaks for expressing breast milk. As such, employers with facilities in any of these states will need to confirm that its policies comport with both the FLSA amendment and pre-existing state law.

In the absence of applicable regulations, the Fact Sheet is designed to assist employers with complying with this new requirement. The Fact Sheet may be found in its entirety at: http://www.dol.gov/whd/regs/compliance/whdfs73.pdf.