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Amendment to the Fair Labor Standards Act: Reasonable Break Periods Required for Nursing Mothers

by The Human Equation, Inc. on 4/19/2010
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On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (Act). In addition to the Act’s highly-publicized health care reform provisions, this legislation includes a lesser-known amendment to the Fair Labor Standards Act (FLSA) which provides reasonable break time to nursing mothers wishing to express breast milk in the workplace.


Until now, there was not a single, uniform law affording nursing mothers the right to express breast milk in the workplace. As a result, less than half of the states provide mothers with any workplace protections in this regard. Those states that have elected to offer some form of workplace protection to nursing mothers often do so in different ways, thereby creating a non-uniform system with varying requirements depending on geographic location.


For example, Georgia’s statute provides that an employer “may provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.” California’s statute opted for a more direct approach by providing that “every employer…shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child.” Oregon’s statute goes further by providing that unless otherwise agreed to by the employer and the employee, “the employer shall provide the employee a 30-minute rest period to express milk during each four-hour work period.”

As these examples illustrate, the absence of a law with nationwide applicability has negative implications for both nursing mothers and employers. Depending on their state of residence, nursing mothers may not have any protections when it comes to expressing breast milk in the workplace. Additionally, employers operating in multiple states may be confronted with different legal requirements for their operations across state lines, which often requires different personnel policies and procedures and can result in unintended violations of laws. The amendment to the FLSA seeks to resolve these problems. And while the new break requirement does not preempt any state laws that provide greater protections to employees, at the very least it creates a baseline requirement to accommodate nursing mothers so multi-state employers will not be blindsided by a completely new break requirement when they expand their operations into other states.


The amendment operates by adding a new section to the FLSA which provides that “an employer shall provide a 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 not required to compensate an employee for time spent expressing breast milk. Additionally, an employer must 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.”


Under the amended law, employers with 50 or more employees must provide these reasonable breaks. However, employers with less than 50 employees may avoid the break requirement if providing such breaks “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”


It is important to note that employers with less than 50 employees are not exempt from the law. They merely may seek to avoid providing the reasonable breaks if doing so would impose an undue hardship by causing significant difficulty or expense. While the Department of Labor has not yet issued regulations or guidelines clarifying the precise meaning of the amendment, comparing the undue hardship exemption to other employment laws using similar language suggests two things. First, the burden would be on the employer to prove that providing the required reasonable breaks imposes an undue hardship. Second, meeting this burden of proof may be difficult for the employer to achieve.


Moreover, the fact that the Act chose to place the reasonable break requirement in the FLSA, rather than Title VII of the Civil Rights Act or some other employment law, suggests that the amendment was intended to have the broadest applicability possible, thereby making it applicable to most employers. Whereas Title VII or the Americans with Disabilities Act generally apply to employers with 15 or more employees, the FLSA has been interpreted to apply to virtually every employer. This apparent goal of maximum applicability would support an interpretation that employers seeking to avoid the reasonable break requirement under the undue hardship exemption have a significant hurdle to overcome.


In addition to clarifying the undue hardship standard, the Department of Labor’s regulations should also clarify some other unanswered questions. For example, what is considered a reasonable break time? Will there be a fixed time frame or will it be left to discretion of the employer or the desire of the nursing mother? Can the nursing mother choose any time she wants to express the breast milk or will she have to make an effort to have the break time coincide with other break periods, like several state statutes require? Does the new law’s rejection of a bathroom as an acceptable location merely prohibit employers from sending nursing mothers to a toilet stall or is a private washroom that happens to contain a toilet also considered unacceptable? What are the penalties for a violation? Many of these questions remain unknown at this point.


Nevertheless, once the Department of Labor issues its regulations and guidance, the precise scope and requirements of the new law will take shape. Additionally, as with any new law, the provisions will undoubtedly be tested in court. In the meantime, employers should begin planning how compliance with the new law will be undertaken and updating their policies and procedures to ensure compliance. Employers facing difficult cases or close calls may want to consider seeking the advice of counsel to avoid potentially costly violations.

If you would like to learn more about the Fair Labor Standards Act, take our Wage & Hour course.

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Categories: 2010

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