Nursing Mothers and Compliance

An amendment to the Fair Labor Standards Act included in the recent Health Care reform law imposes a new requirement on the workplace. Employers must now provide "reasonable" unpaid breaks to nursing mothers in the first year after birth. The health care law adds a new provision to the FLSA, 29 U.S.C. §207(r)(1), which allows nursing mothers to take a break every time they need to express breast milk and requires employers to provide a private location, other than a bathroom, where such employees may express milk. This provision under the Patient Protection and Affordable Care Act amended the FLSA effective March 23, 2010.

Employers of fewer than 50 employees are exempt if the breastfeeding requirements would "impose an undue hardship by causing the employer significant difficulty or expense." You can read more on the U.S. Department of Labor Website, Fact Sheet #73: Break Time for Nursing Mothers under the FLSA

The new legislation only covers women who are paid hourly, not a salary, although some state laws cover both. If you work in a state that is more favorable to the employee than the federal law, you'll need to follow your own state's rule. Here's a link to all the state breastfeeding rules. Twenty-four states have laws related to breastfeeding in the workplace: Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming, plus the District of Columbia and Puerto Rico.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:

(r)(1) An employer shall provide-

1. 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; and
2. 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.

(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.

(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, 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.

(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207)

For additional commentary on developments in compliance and ethics, visit Compliance Building, a blog hosted by Doug Cornelius.

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