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Change to FLSA Requires Breaks for Nursing Mothers

December 21, 2012

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Janet E. Lanyon

Under a change to the Fair Labor Standards Act (FLSA) made by the Patient Protection and Affordable Care Act, employers are required to permit nursing mothers to take breaks to express milk and to provide a private location, other than a bathroom, to do so. Nursing mothers may take “reasonable” break time for this purpose from the birth of a child until the child reaches age 1. The employer must provide a break area for the employee which is shielded from view and intrusion by coworkers and the public.

These changes apply to all employers that are subject to the FLSA. An employer with less than 50 employees is not subject to these requirements if it can demonstrate that compliance would impose an undue hardship on the employer by causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. Also, the nursing mother break time requirement does not apply to employees who are exempt from Section 7 of the FLSA, which includes the FLSA overtime pay requirement. Thus, for example, employees who fall under the professional, administrative, executive or outside sales exemptions from overtime pay are also exempt from the requirement to provide breaks for nursing mothers.

Although the amended statute does not require that an employee’s breaks to express milk be paid, to the extent that the employee uses otherwise available paid break time to express milk, an employer may not deny payment for the break. Further, the amended statute does not modify existing regulations under the FLSA concerning break time for non-exempt employees. These regulations require that rest period of short duration (from 5 to 20 minutes) be paid. Assuming that a break to express milk exceeded this duration, the employee must still be completely relieved of her duties for a break to express milk to be unpaid. Because the statute requires that the breaks be provided each time that the employee has the need to express milk, there is no limit on the number of breaks which may be taken in a workday.