Breaks for nursing mothers

Congratulations on your new daughter! However, the answer to your question is no—there is no law that allows you time-off to breastfeed your baby—but don’t stop reading. There is a recent amendment to the federal Fair Labor Standards Act of 1938 (FLSA) that does require your employer to allow you work breaks to express your milk for your little girl. For male, non-parent, readers, “express” means to pump breast milk—not to describe it eloquently.

This amendment to the FLSA became effective when the health care reform bill was signed on March 23, 2010, to become law as the Patient Protection and Affordable Care Act. Section 4207 of the law amended Section 7 of the FLSA by adding the following at the end of the provision:

(r)(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.

Again—don’t stop reading. Laws are never as simple as they seem, so let’s look at each point:

(r)(1)(A) The law doesn’t define the term “reasonable break time,” nor does it place a number on how many times the “employee has need to express milk.” The amount of time that a mother will need to pump milk each time will vary for each individual, as will the number of times each day. Both of these need to be worked out through positive communication between the employee and the employer. As a guide, the federal government’s source for women’s health information, WomensHealth.gov, provides the following guidance to nursing mothers in the workplace: Express milk for 10-15 minutes approximately 2-3 times during a typical eight-hour work period.

Although the FLSA does not otherwise require rest breaks, 15-20 minute rest breaks are common in most workplaces and should provide sufficient time for pumping and travel time to and from the lactation room. Again, this is a guide only. The law is not specific regarding time-length or number of occasions.

(B)The employer does not have to dedicate a special room for the nursing mother to express milk, but one MUST be available when the employee needs it. The room must provide privacy (either lockable or with a sign that indicates it is in use) and a clean site for lactation. As the law and USDOL Fact Sheet #73 state, it cannot be a bathroom. Reasonably, the room should have a chair, table, and access to electricity to operate the breast pump. The mother will also need access to clean water and to a hygienic refrigerator to store the milk.

(2) Although the time spent in expressing milk does not have to be paid, if an employer as a matter of practice or policy does give rest breaks, these would be considered work time by the FLSA and the USDOL states, “where employers already provide compensated breaks, an employee who uses break time to express milk must be compensated in the same way that other employees are compensated for break time.” If an employee is compensated for short breaks to smoke or use the restroom, a nursing mother-employee would be entitled to the same compensation to express breast milk. However, if the number of breaks for expressing milk exceeds those provided to other employees, the extra breaks need not be paid. However, the employer can elect to do so.

(3) Although the law states that employers with less than 50 employees, and that’s less than 50 employees total over all work-sites, are exempted if providing this benefit would cause an undue hardship, bear in mind that the burden of proving that hardship is on the employer, and is not automatic. Employers are recommended to check with their attorney before denying the benefit. The 50 also includes employees assigned to third party employers or joint employers.

(4) The CNMI does not have any laws relative to nursing mothers. One was proposed as a bill in 2000 but was not enacted into law.

Let me make a few other relevant points. The law does not provide for the presence of the infant in the workplace for breastfeeding, only for the expressing of milk, and only applies while the child is less than 12 months of age.

As you have surely noted, this benefit is provided by the FLSA. This law applies only to FLSA covered and overtime eligible employees, whether covered on an enterprise or individual basis. If they are assigned to a third-party site, the employer of record is still responsible for ensuring the employee receives the benefit at the work-site. If the employee is jointly employed by two or more employers and one is FLSA covered, the employee is covered for the benefit. Businesses should double check their FLSA status and that of their individual employees who handle credit cards and other forms of interstate commerce.

Those employees who are exempt from the FLSA are not covered by this law or provided the benefit. However, as overtime exempt employees usually have greater flexibility with work schedules and, as salaried employees, cannot be deducted for short absences, they should discuss their need with their employer.

The Human Resource Officer should take the lead in ensuring that this new provision of the FLSA is complied with and that nursing mother employees should receive the full benefit of the law. Policies and handbooks may need to be updated and employees informed of their right to the benefit. Employers should recognize that there are benefits in providing this benefit, in addition to not having visits from the USDOL, in that breast-fed babies are generally healthier, which will lessen the time a mother will need to take off from work, and that this benefit will relieve the stress on a nursing mother, both psychologically and physically, allowing her to perform her work more efficiently.

The USDOL Wage and Hour fact sheet can be accessed at: http://www.dol.gov/whd/regs/ compliance/whdfs73.htm

Again, congratulations on your new daughter.