I don’t know what it is about this time of year but it seems like everyone is pregnant – well, the women anyway ( see Arnold Schwarzenegger in Junior).

While the nursing accommodation rules were issued a few years ago, recent pregnancy discrimination lawsuits make it an appropriate time to remind employers of the break requirements for nursing moms under the Fair Labor Standards Act (FLSA), as amended by the Affordable Care Act.

Does the Act Apply to Your Business + Employees?

Generally, all employers must comply with this Act; however if it poses an undue burden, employers with fewer than 50 employees may not be required to comply. The undue burden exception is tough to meet so we don’t recommend relying on it if you have any private space for nursing.

All employees that are non-exempt under the FLSA are entitled to these breaks. Specific employees that are considered exempt from minimum wage and overtime is a topic of another article, but non-exempt employees—those who are entitled to these breaks—include hourly workers and employees that do not hold executive, professional or management positions.

General Requirements

  • Time

Employers are required to provide reasonable break time for an employee each time she needs to express milk for 1 year after the child’s birth. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed as well as the duration of each break will likely vary.

  • Location

Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public that may be used by an employee to express milk. A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Do I have to Pay for These Breaks?

The answer to this question is not so simple. Employers are not required under wage and hour laws to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, 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. In addition, employees must be completely relieved from duty or else the time must be compensated.

The Bottom Line

Be aware and considerate of nursing mothers. Know when and where you have to provide these breaks because new mothers make very good plaintiffs. While no specific penalties are set out for violations of this portion of the FLSA, the DOL may seek injunctive relief and if an employee was fired because of the nursing breaks, reinstatement and lost wages are possible penalties. These penalties are not hefty on their own, but coupled with other legal claims they sure don’t help your defense.