Department of Labor Issues Request for Information and Preliminary Interpretations for Nursing Mother Break Time Amendment

On December 21, 2010, the Department of Labor (DOL) published its request for information in the Federal Register regarding the recent amendment to the Fair Labor Standards Act (FLSA) requiring employers to provide a reasonable break time and a place for nursing mothers to express breast milk one year after their child’s birth.  Also contained in the notice are the DOL’s preliminary interpretations of the new break time amendment to the FLSA.

The break time provision requires employers to provide a “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 are also required to provide “a place, other than a bathroom, that is shielded from the view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

My firm published an article back in August shortly after the DOL provided its initial guidance as to how employers should implement this new law, which is just one of many components of the Patient Protection and Affordable Care Act.

The DOL has stated that the current request for information is an opportunity for the public to submit comments for its consideration as the forthcoming guidance is formulated and issued. Some key issues were addressed in the preliminary interpretations. Employers are not required to compensate mothers for breaks taken for the purpose of expressing milk. However, if the employer permits short breaks (usually 20 minutes or less) the time must be counted as hours worked when determining if the FLSA requirements of minimum wage and/or overtime have been satisfied. Where an employer already provides paid breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are compensated for break time. Where practicable, the employer should make a room (either private or with partitions for use by multiple nursing employees) available for use by employees taking breaks to express milk. Where it is not practicable to provide such a room, the employer should create a space with partitions or curtains.

The DOL does not believe that breaks to express milk should be considered FMLA leave or counted against an employee’s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the DOL does not consider expressing milk at work as bonding with or caring for a newborn child.

Employees are still entitled to receive any greater protections that individual states may provide in addition to those provided by the FLSA.

About Ashley Kasarjian

Attorney at Snell and Wilmer in Phoenix, Arizona, and publisher of the blog, Employment and the Law.
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