The Fair Labor Standards Act (FLSA), as amended by the Patient Protection and Affordable Care Act (ACA), requires employers to provide nonexempt employees with reasonable break times to express breast milk for up to one year following the child’s birth. Many states have enacted laws to provide additional lactation break rights. Nonetheless, employers routinely fall short of full compliance when it comes to nursing mothers in the workplace. In fact, a recent study reported in the journal Women’s Health Issues surveyed nursing moms across the nation who gave birth in 2011 and/or 2012 and were working full-time or part-time when they responded. Data showed that only 59% of the respondents had sufficient break time for pumping, and just 40% had access to both a break time and a private space for expressing milk that was not a bathroom, despite federal law requiring both of these. Moreover, a third of the women reported that working created a challenge for breastfeeding. Although the ACA was signed into law in March 2010, many employers across the country are only recently unveiling breastfeeding stations and taking steps to comply with the law due in large part to grassroots and marketing campaigns. As we approach 2017, it is important for employers to comply with federal and state laws that govern the timing, frequency and location of lactation breaks. The tips below will help ensure nursing mothers are able to give their best to their work and their baby.
Data showed that only 59% of the respondents had sufficient break time for pumping, and just 40% had access to both a break time and a private space for expressing milk that was not a bathroom, despite federal law requiring both of these.
TIP #1 EVALUATE EMPLOYER’S COVERAGE STATUS
All employers covered by the FLSA must provide lactation breaks to their non-exempt employees. However, employers with fewer than 50 employees may be deemed exempt from this requirement if the employer is able to show that providing lactation breaks would impose an undue hardship on the employer’s business. Accordingly, employers with fewer than 50 employees who may qualify for an exemption should conduct a thorough analysis of the challenges of compliance by considering the size, financial resources, nature and structure of the employer’s business, and document these findings.
TIP#2 PROVIDE A PRIVATE SPACE
Nursing mothers are entitled to a private place, other than a restroom, to express milk. The location must be shielded from view and free from the intrusion of coworkers and the public. If no such place is available, employers should temporarily convert a space into a station for expressing milk. If possible, the nursing station should be close to the nursing mother’s work area. In designating the private space, employers should take into account the particular industry, size of the business and number of female employees ages 18 to 45. Indeed, specific options may vary based on the unique job setting. For example, nursing mothers employed at large businesses with multiple buildings might benefit from having multiple nursing stations available. Similarly, employers with nursing mothers who work in outdoor settings might consider creating a mobile outdoor station.
TIP #3 BE FLEXIBLE WITH TIME
The FLSA does not provide a definition for what constitutes a "reasonable break time," perhaps because length of time needed for lactation breaks may vary. A best practice is to provide nursing mothers with a lactation break each time the employee has a need to express milk. In addition to the actual time it takes to express milk, nursing mothers should be allotted time to reach the nursing station and set up prior to the break and to clean equipment at the end of the break and return to work. Employers may generally consider 30 minutes as a "reasonable break time."
TIP #4 COMPARE EXISTING REST BREAK POLICIES
Employers generally are not required to compensate nursing mothers for work time spent expressing milk. There is one caveat: where employers already provide compensated rest breaks, an employee who uses the rest break to express milk must be compensated in the same way that other employees are compensated for rest break time. For example, if an employer provides its employees with two 15-minute rest breaks and a nursing mother uses those breaks as an opportunity to express milk, the time must be compensated. However, if the nursing mother requires additional time beyond that 30 minutes, the additional time may be unpaid. Similarly, if the employer does not permit any employees to take paid rest breaks, the employer is not required to pay a nursing mother for lactation breaks.
TIP #5 IMPLEMENT AND COMMUNICATE A POLICY
Employers should consider implementing a written policy to address the issue of lactation accommodation. The policy may be incorporated into an existing employee handbook or may be in the form of a notice posted in employee common areas. Employers may also include the policy in wellness program communications. The important point is to create an avenue by which employees can become informed of federal and state lactation accommodation laws and aware of the process for requesting an accommodation. Employers should train their managers/supervisors on how to respond properly to a lactation accommodation request.
TIP #6 COMPLY WITH STATE LAW REQUIREMENTS
Employees located in states with lactation accommodation laws may have greater protections than those under the FLSA. For example, some states require lactation breaks for both exempt and nonexempt employees. Twenty-eight states (Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New Hampshire, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wyoming), the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace. It is essential for employers to understand the scope of applicable state law and implement policies and procedures accordingly.
TIP #7 GO ABOVE AND BEYOND
Smart employers often realize a strong return on investment when employees feel valued. Employers may want to consider going beyond the minimum requirements required by law by providing additional lactation accommodations to nursing mothers. For example, an employer could provide a sink with a safe water source, supplies for washing and drying equipment, a refrigerator to store breast milk and a comfortable chair near electrical outlets for powering electric breast pumps. Some employers have taken it a step further by providing hospital grade pumps in nursing rooms. Although these additional resources are not required under the law, they may make the nursing mother more comfortable and, ultimately, more productive. Indeed, studies show that family-friendly benefits can bring businesses a 3:1 return on investment through lower health care costs, lower employee absenteeism rates, lower turnover rates and higher employee productivity and loyalty.
By following these tips, employers can empower women to make the best choices for both their careers and their children, and advance the employer’s business interests at the same time.