The Affordable Care Act (ACA) health care reform law amended the Fair Labor Standards Act (FLSA) to require employers to provide a place for nursing mothers to express breast milk. The law includes specific requirements the space must meet to comply.
The law also requires employers to allow lactation breaks for nursing employees. Unlike many other breaks allowed under the FLSA, employers must be flexible, recognizing that each nursing mother’s needs will be different.
WHAT’S NEW: Recently, the U.S. Department of Labor’s Wage and Hour Division released “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA.” Although, em-ployees have been entitled to lactation breaks since the law was signed in early 2010, the DOL has just released its employer guidance.
The document highlights three key issues:
- Employers must provide a lactation space other than a bathroom.
- They must allow lactation breaks for nonexempt employees in the first year after giving birth.
- Lactation breaks generally are not compensable with certain exceptions.
HOW TO COMPLY: The FLSA’s lactation break requirement applies to all employers, but those with fewer than 50 employees can decline to provide lactation breaks if they can demonstrate that doing so would be an undue hardship. Unlike the FMLA, all company employees are counted for this analysis, regardless of whether they all work at the same work site. Employers that wish to make this claim should provide the specific costs of providing the breaks as supporting data.
Like undue hardship analyses under the ADA and other federal laws, the costs will be measured against the resources available to the company.
However, employers should check state laws to ensure their break policies comply. The FLSA allows states to provide more generous benefits than federal law does. Many states do.
The lactation room
Employers must provide a room other than a bathroom where employees can express milk. The room must provide sufficient privacy, meaning the room must either be a dedicated lactation room or a room that employees can use without fear of being interrupted.
The guidance uses the term “free from any intrusion from co-workers and the public” when describing the law’s requirements.
Who can take lactation breaks?
Nonexempt female employees who have a child less than a year old are entitled to lactation breaks. Exempt employees are not entitled to the breaks under federal law. However, some state laws may require employers to provide lactation breaks to all employees who need them.
Recognizing that different employees may need varying amounts of time to express milk, employers may not limit the length of lactation breaks.
Breaks generally aren’t paid time
Generally, lactation breaks are not compensable, but there are exceptions. For example, an employer that provides paid breaks cannot refuse to allow an employee to use that time for lactation. Employees who choose this option must be compensated in the same way as other employees.
Similarly, the FLSA requires that employers may only deny pay to an employee if she is completely relieved of all duties.
The FLSA as a baseline
Lactation breaks must be part of an employer’s break policy. As such, they provide opportunities for employers to expand on the law’s minimum requirements. For example, employers may provide paid lactation breaks to eligible employees.
Expanding lactation breaks to exempt employees may provide a benefit at very little cost. Because they are exempt, employers could not really stop them from taking the breaks as long as they performed their jobs.
The FLSA entitles employees to lactation breaks for the first year of the child’s life. Employers could go further and allow the breaks for as long as the employee needed them.
Avoiding retaliation
You may not retaliate against employees for taking lactation breaks. Therefore, any employee performance metric that could be adversely affected by lactation breaks should be adjusted to avoid those impacts. (That should include metrics for exempt employees, too. Punishing an exempt employee for taking lactation breaks could be construed as sex discrimination.)
Once you have established a policy on lactation breaks, train the managers and supervisors who must actually implement and enforce the policy. Co-workers may resent lactating employees for taking these breaks. If they complain, managers should explain that the law requires the employer to provide the breaks.
Should lactating employees have a problem with the lactation room or other aspects of the lactation break policy, provide an avenue to raise those concerns without fear of retaliation. Supervisors should document the complaint and investigate to determine if it has merit.
Regardless of how the investigation ends, don’t punish the employee for bringing forward a legitimate concern. That could trigger the FLSA’s anti-retaliation provisions.
Employees who cannot resolve complaints internally may complain orally or in writing to the DOL’s Wage and Hour Division.
