Regular readers may have noticed a decline in the frequency of our updates around the end of the year. That’s because, in addition to the usual holiday and year-end craziness, my wife and I welcomed a new baby on the day after Christmas. As I get back into the swing of work and blogging, I thought this might be a perfect time to review the federal requirements regarding break time for nursing mothers. 

Before you ask, yes, this really is a wage and hour law issue, as the new rules regarding nursing mothers included in the Patient Protection and Affordable Care Act of 2010 were added as amendments to the Fair Labor Standards Act. 

Here’s what the law requires:

• Employers with 50 or more employees must provide “a reasonable break time for an employee to express breast milk for nursing her child for 1 year after the child’s birth each time such employee has need to express the milk.”
• The employer must provide “a place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and the public, which may be used by an employee to express breast milk.”
• Employers with fewer than 50 employees are subject to the same requirements unless complying with the law “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation tot he size, financial resources, nature, or structure of the employer’s business.” 
• Employees do not have to be paid if they take a break during work time under the law.

There are a few important things that employers should keep in mind with respect to this law:

1. While the additional leave provided by the law can be unpaid, employees who use what would otherwise be a paid break in order to express milk must be compensated in the same manner as other employees for the break time. Additionally, for break time under the law to be unpaid, the employee must be “completely relieved of duty,” and should not perform any work.
2. The law does not apply to employees who are exempt from Section 7 of the Fair Labor Standards Act, which is the section governing overtime. Accordingly, executive, administrative, and professional employees, as defined under the FLSA, are not entitled to breaks to express milk under federal law. 
3. While there is an “undue hardship” exception for employers with fewer than 50 employees, there is no such exception for employers with 50 or more employees. In other words, larger employers are required to comply with the law even if doing so would be expensive or disruptive to their operations. 
4. Many states and localities also have laws relating to nursing mothers. If your business has employees in a jurisdiction that provides more generous rights for nursing mothers than required by federal law, you must comply with those laws. The National Conference of State Legislatures offers a summary of state laws relating to breastfeeding and expressing milk on its website.