Rights that nursing mothers have in the workplace

August 28, 2017

As part of the passage of the Patient Protection and Affordable Care Act, Congress amended the Fair Labor Standards Act to require employers to provide additional breaks for nursing mothers to express breast milk.

The law requires that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.”

Employers also are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk,” according to the Department of Labor’s fact sheet on the law.

 The amount of time provided by the employer should be as frequently as needed by the nursing mother.

Not every employer is covered, or employee eligible, for the law’s benefits.

First, it only applies to non-exempt employees (some refer to such employees as hourly). Thus, employees who are exempt from overtime also are exempt from the act’s requirements. In addition, employers with fewer than 50 employees are not subject to the break time requirements if compliance with the provision would impose an undue hardship.

To determine whether an undue hardship exists, the Labor Department states that employers should consider the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure of the employer’s business.

What makes the law complicated is that all employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. This means that employers with multiple small sites (such a convenience store chain or other retail establishments) would have to meet the requirements even though only a few employees work at a given location at any given time.

The reason the Fair Labor Standards Act had to be amended is because typically, short breaks of less than 20 minutes are compensable. However, nursing mothers do not have to be compensated during their nursing breaks, regardless of duration.

Because this is an exception to the act, employers should create a special break code in their payroll system so that these short breaks are unpaid.

Note, however, that where employers already provide compensated breaks, an employee who uses that break time to express breast milk must be compensated in the same way that other employees are compensated for break time. An employee who works during her nursing break also must be paid as working time. These nuances in the law make it somewhat complicated for employers to keep track of it all.

Like other laws providing protection, the law prohibits discrimination or retaliation for complaining about an employer’s failure to comply with the law.

Providing nursing mothers with privacy in nursing and expressing breast milk has reached new innovation. For example, a variety of airports, medical centers, government offices and colleges are equipped with Mamava pods. Mothers need only download the app, get within three feet of the pod, and magically it opens and provides a free private space to nurse.

Employers should consider such innovative solutions where necessary in their organizations, and work directly with nursing mothers to find common ground so that nursing mothers can work productively and continue to provide nutrition to their newborn babies.