This past March the Patient Protection and Affordable Care Act amended Section 7 of the Fair Labor Standards Act (“FLSA”), which now mandates lactation breaks for employees who are nursing mothers. The U.S. Department of Labor has since released Fact Sheet #73, which provides guidance regarding employers’ obligations.
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.
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.
Employees who are nursing a child under one year old and who are not exempt from the FLSA’s overtime pay requirements. When: As frequently as is needed by the nursing mother. The frequency and duration of the lactation breaks will likely vary.
Not a bathroom. The location must be “functional” for expressing milk. 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. 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 FLSA. 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.