On July 22, 2010, the US Department of Labor's Wage and Hour Division (DOL) issued a fact sheet that provides general information on the break time requirement for nursing mothers under the Patient Protection and Affordable Care Act (PPACA), which went into effect on March 23, 2010. This provision amended Section 7 of the Fair Labor Standards Act (the FLSA).

PPACA generally requires employers to provide "reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk." Employers must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk." The law does not preempt state laws that provide greater protections to employees.

The DOL explained that employers must provide a reasonable amount of break time for a nursing mother to express milk as frequently as she needs to do so. The frequency and duration of each break will vary, depending on the circumstances.

A private bathroom is not permissible for these breaks. According to the DOL, "[t]he location provided must be functional as a space for expressing breast milk." If it is not dedicated space, "it must be available when needed in order to meet the statutory requirement." The space can be temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother as long as it is shielded from view and free from any intrusion by co-workers and the public.

The DOL made it clear that only employees who are not exempt from the FLSA's overtime pay requirements are entitled to such breaks. Obviously, an employer may be required to provide exempt employees with these breaks under state law.

An employer with fewer than 50 employees is not subject to the break time requirement "if compliance with the provision would impose an undue hardship." All employees who work for the employer must be counted, not just those who work at the location in question. Similar to the Americans with Disabilities Act, the undue hardship standard considers 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."

Although employers are not required under the FLSA to compensate nursing mothers who take breaks to express milk, the DOL states that "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." Moreover, the FLSA has a general requirement that the employee must be completely relieved from duty during uncompensated break time. The DOL's regulations currently provide that general rest periods of short duration, running from five minutes to about 20 minutes, must be counted as hours worked and compensated.

According to the National Conference of State Legislatures, 24 states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming). Some of these laws require compensated break time, apply to exempt employees, or provide break time beyond one year after the child's birth. Thus, employers should check the laws in their state to determine if they are subject to stricter requirements.

If you have any questions about PPACA's break time requirements for nursing mothers, or similar requirements under state laws, please feel free to contact Arent Fox's Labor and Employment practice.

Michael L. Stevens
202.857.6382
stevens.michael@arentfox.com