WORKPLACE LAW -
Breaks for Nursing Mothers
Question:
I have an employee who is about to return from maternity leave and she has asked me about breaks for nursing mothers when she gets back to work. I haven’t encountered this situation before. Is she entitled to any special kinds of breaks, and if so, what are the rules?
Answer:
Nursing mothers who wish to express breast milk for their infants are indeed entitled to breaks when they return to work. In California, the Labor Code requires that every employer provide an employee a reasonable amount of break time to express breast milk for her infant child. If possible, the employee is required to use any break time that she is already entitled to (such as a 10-minute paid rest period), though the employee is entitled to additional unpaid break time if she needs it.
California law also requires that the employer make “reasonable efforts” to provide the employee with a room, office, or other location that is close to the employee’s regular work area, and which affords her sufficient privacy to express milk. The location provided to the employee may not be a toilet stall. While there are few exceptions to the Labor Code’s requirements regarding nursing mothers, the Code does contain an exemption for employers if providing a nursing mother with breaks would “seriously disrupt” their operations. In most instances, however, an employer will be required to provide the breaks required by California law. An employer can be subject to a civil penalty of $100 for every violation of the Labor Code’s provisions regarding nursing mothers.
While breaks for nursing mothers have been legally protected in California for several years, they were not previously protected under federal law. That has now changed, however, with the passage of the Patient Protection and Affordable Care Act (PPACA), which took effect on March 23, 2010 and which amended the provisions of the Fair Labor Standards Act (FLSA). Under the new law, employers are now required to 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.” Because the federal law does not define what constitutes a “reasonable” amount of time, the length and frequency of breaks taken by nursing mothers will vary, as it does under California law.
Similar to California law, the FLSA requires that employers provide a private location, other than a bathroom, that is suitable for the employee to express breast milk. If the space is not dedicated solely to the nursing mother’s use (such as her own office), it must be available whenever needed in order to meet the requirements of the law. A temporary location that is created or converted into a space for expressing milk, or made available when needed by the nursing mother, is sufficient as long as the space is private and shielded from view, and free from any intrusion from co-workers and the public.
The federal law does not require that employers provide nursing breaks to those employees who are exempt from the FLSA’s overtime pay requirements. Note that this is different than in California, where employers are obligated to provide such break time to all nursing employees, regardless of their exempt/non-exempt status.
The federal law also contains a hardship exemption, and provides that 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.
Under the FLSA, employees who use their paid break time for expressing milk are to be compensated as they normally would be for paid break time. Similar to California law, however, the FLSA does not require employers to compensate nursing mothers for additional break time that is taken for the purpose of expressing milk. Note that the FLSA requires that employees be completely relieved of duty during their break, otherwise the time will be considered work time and will be compensable.
The FLSA requirement for break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees, thus the law in California will typically govern for California employers when it comes to providing these types of breaks. Even so, it’s always a good idea to be aware of changes that are occurring at the federal level, and to know how those changes have the potential to impact employers.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2010 Articles