On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act of 2010 (PPACA). While the PPACA focuses on making changes to the country’s healthcare system, Congress included an amendment to the federal Fair Labor Standards Act of 1938 (FLSA) to allow women to take breaks to pump breast milk at work. The new law, however, was vague in a number of critical respects and left many questions unanswered for employers. Responding to the need for clarification, in July 2010, the U.S. Department of Labor (DOL) published Fact Sheet #73 to further explain an employer’s obligation to provide reasonable break time to nursing mothers. Employers need to be aware of and understand what this new law requires.
More specifically, the PPACA amends the FLSA to require employers to provide:
- “Reasonable break time” for an employee to express milk for her nursing child for 1 year after the child’s birth; and
- A location, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, where the employee may express breast milk.
Frequency and Duration of Nursing Breaks
The FLSA amendment does not define the phrase “reasonable break time” or explain how frequently such breaks much be given. However, the DOL provides some degree of clarification on this measure. In terms of length of the break and frequency, the DOL explained that what is “reasonable” will depend largely on the employee’s needs, as the amount of time needed to express milk varies by woman. Unless it is clear that an employee is abusing her break time rights, employers are advised to defer to the employee with respect to the length of the break and the number of breaks taken each day.
Compensation for Breaks
The FLSA amendment provides that an employer shall not be required to pay for the “reasonable break time.” However the application of this “no pay” provision will depend upon the length of the break and the practices of the employer. According to the DOL, if the employer already provides paid breaks (normally no longer than 15-20 minutes) to its employees, and the nursing mother uses that break time to express milk, then the nursing mother must be compensated in the same way the other employees are compensated for break time. Also, if the nursing mother performs otherwise compensable work during the nursing break, and therefore is not completely relieved from duty during the nursing break, then the nursing mother must be paid for the entire break. To avoid having to pay nursing mothers for the break time, employers should establish and enforce a policy prohibiting nursing mothers from performing any work during the break.
One question left open in the original law was whether the requirement to give “reasonable break time” applied to both exempt and non-exempt employees. The DOL, however, has clarified that only employees who are not exempt from the FLSA’s overtime requirements are entitled to the break time. In other words, under the FLSA, nursing mothers who are exempt from the FLSA’s overtime requirements are not entitled to break time to express milk.
Of course, employers may voluntarily choose to extend the break time entitlement to both overtime exempt and non-exempt employees. Doing so may be a good employeerelations decision. Employers, however, should not deduct from a salaried exempt employee’s pay if the employer elects to provide them break time; doing so could jeopardize the exempt classification. On the other hand, it would be permissible for an employer to make a deduction from a salaried exempt employee’s accrued PTO or vacation time for break time spent expressing milk.
Undue Hardship and the 50-Employee Threshold
The FLSA’s break time amendment does not apply to employers with fewer than 50 employees if the law would impose an “undue hardship” on the employer. According to the DOL, “all employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.” Therefore, an employer with fewer than 50 employees at one particular location but more than 50 employees in the aggregate at all locations is obligated to comply with the break time requirements of the FLSA amendment and may not attempt to avail itself of the “fewer than 50 employee” undue hardship exception.
For those employers with fewer than 50 employees in the aggregate, regardless of location, an undue hardship is determined by looking at the difficulty or expense of compliance in comparison to the size, financial resources, nature and structure of the employer’s business. Therefore, what may be an undue hardship for one employer with fewer than 50 employees may not be an undue hardship for another employer with fewer than 50 employees. The inquiry will be fact-specific and likely a fairly high threshold for many employers to meet.
Location of Breaks
The DOL reiterates the statutory language that a bathroom, even if private, is not a permissible location for the break. According to the DOL, employers are not required to maintain a space that is dedicated solely for nursing mothers’ use, but a shared-use room must be available to be used privately (and shielded from view and free from intrusion) when needed by a nursing employee to express milk.
The DOL also states that the location provided “must be functional as a space for expressing milk.” While the DOL does not clarify what it means by “functional,” we advise employers to establish a location that, at a minimum, has an electrical outlet, a locking door, adequate ventilation, and a chair. While not expressly required under the FLSA amendment, we also recommend that employers provide a small refrigerator, or a shelf in a currently maintained refrigerator, where employees can store their breast milk.
Prior to passage of the PPACA, some states, including Florida, already had laws on the books providing rights to nursing mothers. State laws that provide greater rights to nursing mothers remain in effect.
Under Florida law, a mother may breastfeed her child in any location, public or private, where the mother is otherwise authorized to be, even if the mother’s breast or nipple is exposed. In several respects, the new FLSA amendment provides greater rights to nursing mothers than the Florida law. Therefore, Florida employers, in addition to complying with the state law, must provide the new rights accorded by the FLSA amendment.
Susan J. Toepfer is a shareholder in the Labor and Employment Department. Ms. Toepfer’s practice is focused on litigation of employment disputes in federal and state court and before administrative agencies. She is the immediate past president of the Greater Miami Society for Human Resource Management. Ms. Toepfer earned her J.D., cum laude, from the University of Michigan and her B.S., magna cum laude, Phi Beta Kappa, from Vanderbilt University.
Andrew L. Rodman is a shareholder in the Labor and Employment Law Department. He represents and advises clients on a broad range of labor- and employment-related matters under state and federal law. He earned his J.D., cum laude, from Boston University School of Law and his B.A., magna cum laude, from Brandeis University.