Recently, the U.S. Department of Labor (DOL) released general
information to guide employers on the break time requirements for
nursing mothers in the Patient Protection and Affordable Care Act
("Act"), which became effective on March 23, 2010, and
amended Section 7 of the Fair Labor Standards Act (FLSA). The Act
requires employers to provide "reasonable break time for an
employee to express breast milk for her nursing child for 1 year
after the child's birth each time such employee has need to
express the milk." Employers must also "provide a space,
other than a bathroom, that is shielded from view and free from
intrusion from coworkers and the public, which may be used by an
employee to express breast milk."
The Act does not require employers to pay nursing mothers for
breaks taken to express milk. However, if the employer provides
paid breaks to other employees, a nursing mother must be
compensated in the same manner if she uses her break time to
express milk. In addition, if the employee is not completely
relieved from work during the nursing break, the employee must be
paid for the break.
Employers who have less than 50 employees may be exempt from
providing unpaid breaks to nursing mothers to express milk if doing
so would impose an undue hardship. When determining whether this
exemption applies, the DOL counts all employees who work for the
covered employer, regardless of worksite, and then looks at the
difficulty or expense of compliance in comparison to the size,
financial resources, nature and structure of the employer's
business.
The Act does not preempt state laws that provide greater
protections to employees. In Illinois, employers with more than 5
employees must provide reasonable unpaid break time each day for a
nursing mother who needs to express breast milk. In comparison with
the federal Act, the Illinois law is more favorable to employees in
that it does not have the one year time restriction.
As with other breaks, employers must remember to check both federal
and state laws to determine what obligations they may have to
nursing mothers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.