We recently reported that in March of 2010, the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) enacted legislation which provides reasonable break time for nursing mothers. This law serves to amend Section 7 of the Fair Labor Standards Act and requires that covered employers must provide “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 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.” The location 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. 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 coworkers and the public.
The break time requirement only applies to employees who are not exempt from the FLSA’s overtime pay requirements and employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as 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 a covered employer, regardless of work site, are counted when determining whether this exemption may apply.
The United States Department of Labor administers and enforces the Fair Labor Standards Act through its Wage and Hour Division. At the time the legislation was passed, the Department of Labor did not specify any minimum number of, frequency of, or duration for these breaks, but rather stated that the frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.
The Department of Labor has now published a Request for Information (RFI) seeking public input on the Nursing Mothers’ Amendment to the Fair Labor Standards Act. The RFI serves two purposes: it provides preliminary interpretations of the law and seeks information from employers so that it may more fully understand the practical implications of the law that may need to be addressed in final guidance documents.
The RFI seeks to clarify the following issues:
The Department of Labor welcomes comments and other input from employers regarding the above issues and any other concerns raised by the new Nursing Mothers’ Amendment, and will accept these comments through February 22, 2011 via email at https://www.regulations.gov or by mail addressed as follows:
Montaniel Navarro United States Department of Labor 200 Constitution Avenue NW Room S-3502 Washington DC 20210
If you have questions about this or other employment-related issues, please contact Connie Carrigan, ccarrigan@smithdebnamlaw.com.
Connie Elder Carrigan is an accomplished attorney with a passion for helping clients, individuals, employers, and business representatives in planning for their future - from creating initial documents for a new company to advising on compensation, harassment, discrimination, and employment agreements - to estate planning and trusts and estate administration, Connie advises clients with shrewdness and prudence backed by over three decades of experience.
