With Mothers’ Day fast approaching, employers should take a moment to consider whether they have taken steps to comply with a fairly recent change in the law that affects their obligations to new mothers on the job. In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) (29 U.S.C. §207) to require employers to provide reasonable break times and spaces for nursing mothers to express breast milk for their children. Despite it being over three years since this law went into effect, many employers remain unaware of their legal obligations with regard to lactating mothers in the workplace.

All employers are affected by the FLSA’s requirements with regard to lactation policies. Employers with more than 50 employees must provide a “reasonable amount of break time” “as frequently as needed” for mothers of children 1 year or younger to express milk. Those employers also are required to provide a place, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” to express breast milk. That requirement can be fulfilled in several ways, including the conversion of an unused office to a permanent “Mothers Room” with a locking door, simply making an unused office with a locking door available for a mother’s use, or even using moveable screens in little-trafficked parts of the office. The U.S. Department of Health has identified several other potential solutions in a publication devoted to assisting employers in accommodating nursing mothers in the workplace.

Smaller employers, those with less than 50 employees, are not required to permit breaks or provide a place for expressing breast milk at work if doing so would impose an undue hardship upon them. In determining whether an undue hardship exists, the employers’ size, financial resources, nature and structure of the employer’s business is considered. As a practical matter, most employers are likely to have a difficult time establishing an undue hardship given the limited interference that compliance with the law’s requirements is likely to have. Employers that wish to take advantage of the “undue hardship” exception are advised to consult with counsel regarding whether they need to comply with this aspect of the FLSA.

There is no specific limit to the number of breaks that an employee may take under this revision to the law. Indeed, given the law’s language that breaks must be permitted “as frequently as needed,” any type of arbitrary limit on the number of breaks permitted is likely to be found to be a violation of the law. Furthermore, while the law does not require that these employees be paid for this “reasonable break time,” other Federal regulations provide that “rest periods of short duration, running from 5 minutes to about 20 minutes are common in the industry…[and] must be counted as hours worked.” 29 C.F.R. §785.18. Employers considering making these breaks unpaid therefore are advised to consult with counsel about that decision as well.

The Department of Labor has provided a Fact Sheet to help employers comply with these requirements that bears review by all employers. Employers that have not yet addressed the need to make their workplace accessible for new mothers should at the very least consider doing the following:

  • Develop a written policy regarding lactation accommodation, indicating how to request reasonable breaks and defining the space that should be used to express breast milk while at work.
  • Identify the private space in the work location (other than a bathroom) that can be used by employees for expressing breast milk.
  • Communicate how the designated space can be accessed and secured, and whether other mothers will be using it.
  • Review the laws of the state in which your facilities are located to determine whether there are additional requirements that are more restrictive than the Federal law.

In the end, providing accommodations for new mothers for lactation is not just legally required, it often is good business as well. The CDC recently released a report finding that breastfeeding is on the rise among new mothers generally, and providing these types of accommodation is one way to ensure that your business is in a position to compete for the talents of women with families.