Break Time for Nursing Mothers Under the FLSA
The Health Care reform legislation everyone has been talking about has a provision which affects the rights of nursing mothers. While we have related legislation in New York, the federal Wage and Hour Division has recently issued a FACT SHEET with its interpretation of the new nationwide requirements. Here are the basic requirements:
1. Generally, employers are required 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, in a private place other than a bathroom.
2. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.
3. The location provided must be functional as a space for expressing breast milk. 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 that the space is shielded from view, and free from any intrusion from co-workers and the public.
4. Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk.
5. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is 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 employer’s business.
6. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated 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.
