State and federal laws currently prohibit discrimination of an employee based on pregnancy, childbirth, and related medical conditions during pregnancy. On March 23, 2010, President Obama expanded protections for nursing mothers, when he signed the Patient Protection and Affordable Care Act into law. One of the provisions of the Act is an amendment to the Fair Labor Standards Act (“FLSA”) that requires covered employers to provide reasonable break time for non-exempt nursing mothers.
Who does the Law Apply to?
Employers with fewer than 50 employees are exempt from this provision if complying would impose an undue hardship. An undue burden is one that causes “the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
Employers should note, however, that in determining whether this size exemption applies, the Department of Labor considers the aggregate number of employees who work for the employer, regardless of the number of employees working at a particular work site.
How often must employers afford break time to nursing mothers?
Employers must provide nursing employees with breaks to express breast milk for one year following a child’s birth. While the amendment is silent on the number and duration of breaks that must be allowed, the Department of Labor Fact Sheet states that breaks may be taken “as frequently as needed by the nursing mother,” and that “the duration of each break will likely vary.”
What type of space must the employer provide?
The employer must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” for the nursing mother to express her milk. The space does not need to be for the nursing mother’s exclusive use, but it must be available when needed.
Does the Break Need To Be Paid?
No, the break may be unpaid. However, if the employer provides paid breaks to other employees then the nursing mother must also be paid for her nursing breaks in the same way that other employees are paid for break time.
If the employer chooses not to pay for break time, the FLSA requires that the employee be entirely free from all work related duties.
