Tools for Employers
The “Business Case for Breastfeeding” is a comprehensive program designed to educate employers about the value of supporting breastfeeding employees in the workplace. The program highlights how such support contributes to the success of the entire business. The “Business Case for Breastfeeding” offers tools to help employers provide worksite lactation support and privacy for breastfeeding mothers to express milk. The program also offers guidance to employees on breastfeeding and working. Resources to help lactation specialists and health professionals to educate employers in their communities are also available.
Workplace Support in Federal Law
Section 4207 of the Patient Protection and Affordable Care Act (also known as Health Care Reform), amended the Fair Labor Standards Act (FLSA), or federal wage and hour law. The amendment requires employers to provide reasonable break time and a private, non-bathroom place for nursing mothers to express breast milk during the workday, for one year after the child’s birth. The new requirements became effective when the Affordable Care Act was signed into law on March 23, 2010. Break Time for Nursing Mothers, Department of Labor
General Requirements of Section 4207- Lactation Accommodation in the Workplace
Employers are required 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 are also required to provide “a place, 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 FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).
Time and Location of Breaks
Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.
A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.
Coverage and Compensation
Only employees who are not exempt from section 7, which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of Section 7, they may be obligated to provide such breaks under State laws.
Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at 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. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA .