Reasonable Break Time for Nursing Mothers

Recently I was doing research on the economic and work policy effects on breastfeeding mothers in the U.S. The Patient Protection and Affordable Care Act that was signed by President Barack Obama in March of 2010 included an amendment to the Fair Labor Standards Act (FLSA) with a section on breastfeeding, going back to work, and break time for nursing mothers.

I've heard this law talked about for some time, so I knew what it was about, but I wanted to look deeper into it. My main question was on enforcement. As is so often the case, many breastfeeding laws are made but include no language about how they are enforced. For example, state laws that protect nursing mothers' right to breastfeed in public are on the books, but no one knows who should enforce them.

In my research I found out a few other details about the law that are good know. So, for an in-depth look into this new section of the Act that has to do with mother's expressing milk during work hours, read on!

What the Law Actually Says

SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS

An employer shall provide—
7 ‘‘(A) a reasonable break time for an employee to
8 express breast milk for her nursing child for 1 year
9 after the child’s birth each time such employee has
10 need to express the milk; and
11 ‘‘(B) a place, other than a bathroom, that is
12 shielded from view and free from intrusion from co-
13 workers and the public, which may be used by an em-
14 ployee to express breast milk.
15 ‘‘(2) An employer shall not be required to compensate
16 an employee receiving reasonable break time under para-
17 graph (1) for any work time spent for such purpose.

‘‘(3) An employer that employs less than 50 employees
19 shall not be subject to the requirements of this subsection,
20 if such requirements would impose an undue hardship by
21 causing the employer significant difficulty or expense when
22 considered in relation to the size, financial resources, na-
23 ture, or structure of the employer’s business.
24 ‘‘(4) Nothing in this subsection shall preempt a State
25 law that provides greater protections to employees than the
26 protections provided for under this subsection.’’.

Exploring More In-Depth

The United States Breastfeeding Committee has a great FAQ on Section 4207. I perused it and pulled out some information that I think clears up some things about this law.

The law only states that this break time is for employees to express breast milk; It provides no rights to the mother to take a break to physically go and nurse her child. Employers vary, but some do have on-site nurseries where mom can go nurse her child during break times.

The law does say that it is not just about the break time, but also the location. Additionally, it can't just provide for enough time to express the milk, but also the time it would take to walk to the private location, set up the pump, pump, clean the pump, and walk back.

In assessing the reasonableness of break time provided to a nursing employee, the Department will consider all the steps reasonably necessary to express breast milk, not merely the time required to express the milk itself.

The location must be "private," and include a place for the mother to sit, as well as somewhere to place the pump, other than the floor. Employers are NOT required, however, to provide a location with a refrigerator to store the milk, does not require that the location have an electrical outlet to power an electric pump, and does not require the room to be near a sink for cleaning the pump.

Where it is not practicable for an employer to provide a room, the requirement can be met by creating a space with partitions or curtains. Any windows in the designated room or space should be covered to ensure the space is "shielded from view.'' With any space provided for expressing milk, the employer must ensure the employee's privacy through means such as signs that designate when the space is in use, or a lock on the door.

While employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work.

Who is in charge of enforcing this law? The people who enforce the Federal Labor Standards Act, or the Department of Labor - Wage and Hour Division. Complaints are handled the same way any complaint to the Department of Labor would be.

If an employee would like to file a complaint because she believes her employer has violated the break time for nursing mothers requirement under the FLSA, she should call the toll-free WHD number 1-866-487-9243 and she will be directed to the nearest WHD office for assistance. The WHD Web site provides basic information about how to file a complaint and how the WHD will investigate complaints.

The law does not specify a penalty for an employer who violates this requirement, but complaints may be handled the way any complaint about the FLSA would be handled.

If an employer refuses to comply with the requirements, however, the Department may seek injunctive relief in federal district court, and may obtain reinstatement and lost wages for the employee. 

If an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII of the Civil Rights Act of 1964.

It is important to note that if a state has a law that provides more protection than this law does, the state law preempts the national law.

Breastfeeding and the Employer

The Business Case for Breastfeeding, put together by the Department of Health and Human Services, is

program designed to educate employers about the value of supporting 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.

I took a training by the Business Case for Breastfeeding a year ago. The program recommends that employers who choose to support breastfeeding employees provide 1. Milk expression breaks, 2. A clean place to express milk that is private, near a sink or provision of disinfectant wipes, an electrical outlet, and permission to store milk in a work refrigerator (or provision of a cooler/refrigerator for milk), 3. A hospital-grade electric pump, 4. Education for employees and staff support for breastfeeding employees.

These go above and beyond what the new Act calls for, but they are indeed what nursing mothers need when nursing at work. And these programs provide benefits for the employer:

The Business Case for Breastfeeding, published in 2008 by DHHS, demonstrates an impressive return on investment for employers that provide workplace lactation support, including lower health care costs, absenteeism, and turnover rates. Employees whose companies provide breastfeeding support consistently report improved morale, better satisfaction with their jobs, and higher productivity. As part of The Business Case for Breastfeeding initiative, coalitions in 32 states and territories received training to assist employers in establishing lactation support programs.

The National Business Group on Health, a nonprofit organization representing large employers on national health policy issues, says that creating a breastfeeding-friendly work environment reduces the risk of long-term health problems for women and children, decreases employee absenteeism, reduces health claims to employers, and increases retention of female employees.

Is any of this a surprise to you?