They say parents are never off duty, and that is especially true of nursing mothers who express milk for their babies while at work. For some mothers, that has meant performing precarious balancing acts in a bathroom stall.
Until last March, federal law required nursing mothers be given a break to pump milk, but it did not specify where that should be done. The health care reform law included a little publicized provision that amended the Fair Labor Standards Act (FLSA). While many employers already accommodated nursing mothers, it is now mandatory to provide a private space-besides a bathroom-to express milk.
The FLSA is one of the few federal acts based not on employee count, but the amount of interstate commerce you do-meaning it applies to most businesses, even those with few employees. When it comes to nursing mothers, employers are required to provide "reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk." Employers are also required to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public."
Time and Location of Breaks
Employers should be aware that the frequency of breaks to express milk as well as the duration of each break will likely vary.
The location provided must be functional as a space for expressing breast milk, meaning among other things it must be private and have an electrical outlet. If the space is not dedicated to the nursing mother's use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided it meets the requirements noted above. For instance, some companies provide lactation rooms that are not labeled, but are readily available, discretely located and have a locking door.
Coverage and Compensation
Not only does federal law protect working mothers' rights to express milk, but in some cases that time must also be compensated.
In general, breaks of less than 20 minutes for hourly employees and salaried employees who receive overtime are treated as time worked, according to federal law.
Likewise, salaried employees are paid for their presence, with the usual exception of lunch. While employers are not required under the FLSA to compensate nursing mothers for breaks taken to express milk, where employers already provide compensated breaks-such as smoking or coffee breaks-an employee who uses that break time to express milk must be compensated in the same way as other employees.
In addition, the employee must be completely relieved from duty during the break time or else the time must be compensated as work time. If a worker expresses milk during lunchtime, that time does not have to be paid.
Employers with fewer than 50 employees are not subject to this requirement if compliance with the provision imposes undue hardship. That would be determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure of the business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
For example, a startup with 20 employees that occupies an open-floor office plan with cubicles and one unisex bathroom could say it is an undue hardship to provide a nursing mother with private space when no extra bathroom exists. But, in general, providing nursing mothers with a private, discrete space for three to four 15-minute breaks per day is not undue hardship, and most companies already comply.
For additional information, visit the US Department of Labor's Wage and Hour Division Web site at www.wagehour.dol.gov.
Attorney James P. Reidy is chair of the Labor and Employment Practice Group at Sheehan Phinney Bass + Green, PA in Manchester. He can be reached at 603-627-8217, jreidy@sheehan.com or by visiting www.sheehan.com.
Current Issue - May 2024