Break Time For Nursing Mothers: A Little Known Provision Of The Affordable Care Act

In March 2010 a little known provision of the Affordable Care Act amended the Fair Labor Standard Act ("FLSA") overtime rules to require a "reasonable break time" for nursing mothers who are not exempt from overtime pay requirements to express breast milk. Even before this federal law went into effect, Mississippi had been a leader in adopting legislation to protect a mother's right to nurse her child, including in the workplace, when it enacted several laws during the 2006 regular legislative session.

The federal FLSA amendment requires the break time each time the non-exempt nursing mother needs to express breast milk for one year after a child's birth. The location for the break time cannot be a restroom and must be an area that "is shielded from view and free from intrusion from coworkers and the public," although it does not have to be a dedicated space. If it is temporary, however, it must be available when needed by the nursing mother. A vacant room with a lock on the door should suffice as long as it meets the location requirements of the federal rule.

The federal law does not require the nursing employee to be paid for the work time spent in breast milk expression. On the other hand, the regulations promulgated under the amendment make clear that for employers who already provide paid breaks, an employee using such time to express breast milk must be compensated in the same manner as other employees on paid breaks are compensated. The general requirement under the FLSA for non-exempt employees to be completely relieved from duty or else the time must be compensated as work time also applies to time spent expressing breast milk.

Finally, under the FLSA amendment and related regulations, all employers covered by the FLSA are subject to the break-time-for-nursing-mothers requirement. An employer that has less than 50 employees is not subject to the requirements "if such requirements 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." Given that the FLSA amendment is intended to benefit employees, both the Department of Labor and federal and state court likely will the undue hardship exception narrowly.

Under the regulations promulgated by the Department of Labor's Wage and Hour Division regarding such break time, all employees who work for an employer covered by the FLSA are counted...