Are You Complying with the Nursing Mother Amendments to the Fair Labor Standards Act?

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February 03, 2015

While the Affordable Care Act mostly regulates health insurance and related matters, the Act also contains a little-known amendment to a portion of the federal Fair Labor Standards Act (“FLSA”) to require employers to provide specific accommodations for nursing mothers.

Pursuant to the amended Section 7 of the FLSA, employers must provide a reasonable break time for each employee to express breast milk for her nursing child for one year after the child’s birth.

These breaks must be afforded to only those employees who are subject to the FLSA’s minimum wage and overtime provisions. Thus, salaried-exempt employees (e.g., professional, executive, administrative) are not legally entitled to these breaks. A break must be provided each time an eligible employee needs to express milk.

Employers must also provide a place “that is shielded from view and free from intrusion from coworkers and the public” for employees to express milk. Employers should note that a bathroom is not an acceptable location under the new break requirements.

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However, it is not necessary for an employer to create a permanent, dedicated space for nursing mother employees, nor is it necessary to create a nursing space if an employer does not have any nursing mother employees.

Employers are not required to compensate employees for these breaks. However, if an employer already provides paid breaks, it must compensate an employee who uses that break time to express milk.

In other words, if an employer provides all employees with two paid, 15-minute breaks per day and an employee takes three, 15-minute breaks to express milk, the employer will be required to compensate the employee for the first two breaks but not the third.

Employers should note that the general FLSA requirement that an employee on break be completely relieved of duty (or else compensation must be provided) applies to breaks for expressing milk as well.

Finally, employers with less than 50 employees are not subject to these new requirements if the employer can prove that compliance would cause the employer “significant difficulty or expense in relation to the size, financial resources, nature, or structure of the employer’s business.”

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About the author:
Thomas Evan Green is a shareholder with Kastner Westman & Wilkins, LLC, a boutique labor and employment law firm in Akron, Ohio. He is an OSBA-certified specialist in labor and employment law, and distinguished faculty member of Lorman Education Services. The firm represents and counsels employers in all aspects of workforce management, state and federal legal compliance, labor negotiations, arbitration, OSHA, employee benefits, workers’ compensation, and defense of claims filed with administrative agencies and state and federal courts.

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