In March 2010 the Patient Protection and Affordable Care Act amended Section 7 of the Fair Labour Standards Act, which now mandates lactation breaks for employees who are nursing mothers. The US Department of Labour has since released Fact Sheet 73, which provides guidance regarding employers' obligations. The act applies to employees who are nursing a child under one year old and who are not exempt from the overtime pay requirements under the Fair Labour Standards Act.
The new conditions apply to all employers with more than 50 employees without exception. The law also applies to smaller employers, but such employers are exempt if (considering the difficulty or expense of compliance compared to an employer's size and financial resources) compliance imposes undue hardship.
Employers must provide "reasonable break time" for an employee to express breast milk for her nursing child. The employee must be completely relieved from work duties during this period.
Breaks should be allowed as frequently as is needed by the nursing mother. The frequency and duration of the lactation breaks will likely vary.
The location must be 'functional' for expressing milk - that is, not just a bathroom. If the space is not dedicated to the nursing mother's use, it must be available at her need. A temporarily created space is allowed if it is shielded from view and free of intrusions.
Break time may be unpaid. However, break time must be paid if an employee is not fully relieved from duty or is using already compensated break time for the purposes of expressing milk.
Some state laws provide greater protection than the Fair Labour Standards Act. In New York, for example, an employee is allowed reasonable unpaid break time to express milk for a nursing child for up to three years after her child's birth.
For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).