Department of Labor Provides Guidance on Break Requirements for Nursing Mothers

By: Staci Ketay Rotman and Deidra A. Norris

Recently, the U.S. Department of Labor (DOL) released general information to guide employers on the break time requirements for nursing mothers in the Patient Protection and Affordable Care Act (“Act”), which became effective on March 23, 2010, and amended Section 7 of the Fair Labor Standards Act (FLSA). The Act requires employers 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 such employee has need to express the milk.” Employers must also “provide a space, 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.”

The Act does not require employers to pay nursing mothers for breaks taken to express milk. However, if the employer provides paid breaks to other employees, a nursing mother must be compensated in the same manner if she uses her break time to express milk. In addition, if the employee is not completely relieved from work during the nursing break, the employee must be paid for the break.

Employers who have less than 50 employees may be exempt from providing unpaid breaks to nursing mothers to express milk if doing so would impose an undue hardship. When determining whether this exemption applies, the DOL counts all employees who work for the covered employer, regardless of worksite, and then looks at the difficulty or expense of compliance in comparison to the size, financial resources, nature and structure of the employer’s business.

The Act does not preempt state laws that provide greater protections to employees. In Illinois, employers with more than 5 employees must provide reasonable unpaid break time each day for a nursing mother who needs to express breast milk. In comparison with the federal Act, the Illinois law is more favorable to employees in that it does not have the one year time restriction.

As with other breaks, employers must remember to check both federal and state laws to determine what obligations they may have to nursing mothers.