A Little Known Federal Right for Nursing Mothers

“There are three reasons for breast-feeding:
the milk is always at the right temperature;
it comes in attractive containers;
and the cat can’t get it.”

– Irena Chalmers

THE LAW: Although unknown to many people, the Patient Protections and Affordable Care Act of 2010, known as the “Affordable Care Act” or “ObamaCare,” amended the federal law of workplace rights to require employers to provide to almost all female employees reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has a need to express milk. 

Employers are also required to 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 the employee to express milk. 

The law was enacted as an amendment to the Fair Labor Standards Act (“FLSA” for short) the federal law that requires overtime pay for employees who work more than 40 hours in a work week. Employees tend to think that anyone who gets a weekly salary is not entitled to overtime pay; that is very much wrong. It has been estimated that 80% to 85% of all employees in the U.S. are entitled to overtime pay, although many of them are not aware of their right to overtime. (To review our newsletter entitled “80% of Americans are Entitled to Overtime Pay; Are You?” that explains who is entitled to overtime pay, and who is not, simply [click here].)  If those estimates are correct, then this new law regarding breast milk work breaks should, in turn, apply to 80%-85% of working women who are breast feeding or plan to breast feed.  

LESSON TO LEARN: Many people believe that breastfeeding is a very natural, positive and beneficial thing for a new mother to provide her newborn. For those moms who work outside the home, however, expressing breast milk for later use is the next best alternative.

In recognition of and in response to the desire of so many working women to provide breast milk to their babies, the U.S. Congress incorporated into the Affordable Care Act a federal legal right to (a) daily breaks to express milk, and (b) suitably clean and private places to do so, other than a bathroom. 

For you and for the women in your life, it may be a good idea to become familiar with the law.  

THIRTEEN FREQUENTLY ASKED QUESTIONS (“FAQ’s”):

1. Who is entitled to (a) reasonable break time and (b) a space for expressing breast milk at work under the law? – The federal law provides that employees who work for employers covered by the FLSA and are not exempt under its Section 7 (which sets forth the FLSA overtime pay requirements) are entitled to breaks to express milk.

While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime requirements of its Section 7, they may be obligated to provide such breaks under state or local laws.  

2. What types of employers are covered by the law? All employers covered by the FLSA are covered by this law, as well, unless (a) they have fewer than 50 employees, and (b) can demonstrate that compliance with the law would impose an undue hardship. 

3. How often each work day are nursing mothers permitted to take breaks to express milk? The law is quite clear in this regard: “Each time the nursing mother feels the need.” It is anticipated that different women will have different needs in this regard. 

4. What happens when the newborn is over one year old? Under the federal law, at that time the nursing mother is no longer entitled to the break time. Will employers keep track and take note of the anniversary of each child’s birth, and then refuse further requests for a break time to express milk? It is not at all expected that they will do so. Still, it would be within their rights. 

5. Are state and local laws relating to breast feeding and expressing milk preempted (that is, superseded) by the new federal break time requirements? No. Any state or local laws that provide for greater protections or greater rights than does this law are still in force. 

For example, some state and local laws provide for (a) compensated break time, (b) break time for employees who are not entitled to overtime pay, and (c) break time beyond one year of the child’s birth. These rights, derived from state law in certain states, are not superseded by the federal law. 

6. Does the law requiring break time for nursing mothers apply to small businesses? – Sorry to sound like a lawyer, but the answer is “Yes, But . . .” All employers who are covered by the Fair Labor Standards Act (“FLSA”), regardless of the size of their businesses, are required to comply with this provision.  

However, as noted above, employers with less than 50 employees can gain an exemption from this provision if they can demonstrate that compliance would result in an undue hardship, which is determined by looking at the difficulty or expense of compliance for a specific employer, in comparison to the size, financial resources, nature, or structure of the employer’s business. 

7. For purposes of the “undue hardship” exemption, how will the Department of Labor determine whether an employer has fewer than 50 employees? – All employees who work for the employer in question, regardless of the work site, are counted. As to what constitutes an “employee,” an employee is defined as “any individual employed by the employer,” including (i) full-time employees, (ii) part-time employees, and (iii) any other person whose relation with the employer makes him or her an “employee” under the law. 

Believe you’ve been subject to Gender Discrimination? We offer a “Model Letter Submitting Your Complaint of Illegal Gender Discrimination. To obtain a copy of one of these useful model letters, just [click here.] Delivered by Email – Instantly! 

8. Does the break time have to be paid break time? – No. Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks to other employees, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.  

In addition, the FLSA law requires that on a non-compensated break time, employees must be completely relieved from engaging in any and all work duties, or else the break time must be compensated. That FLSA requirement also applies to breast milk break time.  

9. Do employers need to create a permanent, dedicated space for use by nursing mother employees? – No, 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 by co-workers and the public. 

The space 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 in order to meet the statutory requirement. Of course, employers may choose to create a permanent, dedicated space if they determine that is the best way to meet their obligations under the law.  

10. Do employers have to provide a lactation space even if they don’t have any nursing mother employees? – No. The law requires employers to provide a space for a nursing employee “each time such employee has need to express the milk.” Thus, if there is no employee with a need to express milk, then the employer would not have an obligation to provide a space to do so. 

11. If the only space available at a work site is a bathroom, can an employer require employees to express milk there? – No. The law specifically states that the space provided for employees to express breast milk cannot be a bathroom.  

12. What happens if an employee either exercises her rights under this law, or complains about not getting a break, and she is retaliated against? – Section 15(a)(3) of the FLSA states that it is a violation of federal law for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” 

Employees are protected regardless of whether the complaint is made orally or in writing, although we always recommend that any complaint or objection submitted to an employer be made by email (with a “blind copy” sent to  your personal email account). 

Feel you’ve been retaliated against? Use our “Model Memo Objecting to Retaliation on the Job” to stop it and have it reversed. “What to Say, and How to Say It,™ just [click here.] Delivered by Email – Instantly!

13. Might this new right for women be viewed by some as a kind of discrimination against men? While some people might view this new law as unfairly giving a right to women and not to men, or unfairly making men have to make up the work that women might not do while on such breaks, such a view would have no legal significance. Laws often recognize the differences among us, and treat us somewhat “differently” for a good reason.  

For example, the Americans with Disabilities Act, a federal law, provides that employees with disabilities must be provided with restrooms that are wheelchair accessible; that is not an infringement on the rights of the able-bodied. Likewise, there are many different federal benefit programs that are created to assist senior citizens; they are not properly viewed as shortchanging those who are not yet seniors.   

P.S.: If you would like to speak with me directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can be accommodated.

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