July 30, 2010
Nursing Mothers’ Break-Time Fact Sheet
A Human Resources E-Alert
The United States Department of Labor (DOL), the federal agency responsible for enforcing the Fair Labor Standards Act (FLSA), recently issued a Fact Sheet discussing the new break-time requirement for nursing mothers to express milk. This requirement was contained in the extensive health care bill signed by President Obama on March 23, 2010. Bricker & Eckler published an April 2010 bulletin that summarized the amendment’s details.
The Fact Sheet provides “general information” concerning application of the break-time requirement that was not spelled out in the amendment. But it is important to keep in mind that the DOL Fact Sheet is for informational purposes and is not an official statement of position (unlike federal regulations). The Fact Sheet provides the following information:
- The new break-time requirement applies only to nonexempt employees and does not apply to employees who are exempt from the FLSA’s overtime pay requirements (unless such breaks are obligated under state law).
- Employers must provide a reasonable amount of break time to express milk, as frequently as needed by the nursing mother; therefore, the frequency and duration of breaks may vary among employees.
- The space provided for expressing milk may be a temporary space as long as it meets the privacy requirements set forth in the amendment.
- If a space is not dedicated to the nursing mothers’ use, it must be available when needed.
- Although the amendment states that employers are not required to compensate nursing mothers for these breaks, an employer that already provides compensated breaks must compensate a nursing mother in the same way as other employees if she uses such breaks for expressing milk.
- The FLSA’s general requirement that an employee be completely relieved from duty in order for time to be noncompensable applies to nursing mothers who take breaks to express milk.
- With respect to the “undue hardship” exception for employers with fewer than 50 employees, all employees who work for the employer, regardless of the work site, are counted when determining whether the exemption applies.
The DOL will likely issue regulations on this issue to provide additional guidelines for employers.
This E-Mail Alert was prepared by
Donald Keller and Cavett R. Kreps.
If you have any questions about this topic or any other
employment law issue please contact any member of the Bricker & Eckler
Employment and Labor Group.