Are You Complying With Your Nursing Break Obligations?

July 28, 2011, 2:16 PM

The Patient Protection and Affordable Care Act of 2010 slipped a break time requirement for nursing mothers into the Fair Labor Standards Act (FLSA) that affects virtually all employers in the United States. The language added to the FLSA is limited; essentially, it requires employers to "provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child's birth." In late 2010, the Department of Labor (DOL) published its request for information (RFI) from the public regarding this amendment to the FLSA. Such an RFI generally leads to rulemaking by the DOL, which may issue rules elaborating on the requirement some time late this year.

While the FLSA language on these nursing breaks is brief, it does give employers some guidance. First, all employers are required to comply with the law, although employers who have fewer than 50 employees may be eligible for a hardship defense if they cannot provide the requested space. Nursing mothers must be provided a location that is "free from intrusion" and "shielded from view," in which to express milk. This location may not be a restroom. Employees do not have to be paid for these breaks.

Rules promulgated by the DOL may shed light on the unknowns in this law. For example, must nursing mothers be paid for break times of fewer than 20 minutes, consistent with the usual rule for breaks that are too short to primarily benefit the employee? And what length of break is "reasonable"? In the meantime, employers should plan appropriate locations for such breaks and educate supervisors on how to respond to requests from employees. Generally, employers should find a location outside of general view that can be locked (even if used for other purposes at other times) and that has an electrical outlet and a chair. The emphasis on "reasonable" requests and break times in the FLSA's nursing break language suggests that the DOL envisions communication between employer and employee, leading to a mutually-agreeable schedule and location for these breaks. Stay tuned for further guidance from the DOL. -David J. Sullivan