Protections for Nursing Mothers at the Workplace
The Patient Protection and Affordable Care Act, also known as the Healthcare Reform Act, amended Section 7 of the Fair Labor Standards Act (FLSA) to provide break times and privacy for nursing mothers in the workplace.
In general, employers are required to provide 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.” In addition, employers must set aside 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.”
Time and Location of Breaks
Employers are required to provide a “reasonable” amount of break time to express milk as frequently as needed by the nursing mother. The frequency and duration of breaks needed to express milk will be dependent on the individual.
Notably, a bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. The space need not be dedicated to the nursing mother’s use, but 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 that the space is shielded from view, and free from any intrusion from co-workers and the public.
Employers with fewer than 50 employees would not be subject to the break time requirement if compliance with the provision would impose an undue hardship. Whether providing a break time would be an undue hardship is determined by evaluating the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already compensate its employees for breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. As with other breaks, the employee must be completely relieved from duty during the break.
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