Employers may not be aware of the Nursing Mother Amendment, signed into law on March 23 as part of the Patient Protection and Affordable Care Act of 2010. The Amendment modifies the Fair Labor Standards Act (FLSA) and requires covered employers to provide break time to nursing mothers for at least the first year of their babies’ lives. The Amendment is effective immediately.
Employers may wish to develop new employee lactation policies or modify any existing ones to reflect the new requirements. Here are the obligations on employers:
First, nursing mothers must be given “reasonable break time” as needed to express milk. The amount of time needed, and the number of breaks needed, will vary from mother to mother and also may change as the baby matures from a newborn to an infant. Additionally, mothers will need time to clean equipment and to store the expressed milk.
Second, employers must provide a private space, “shielded from view and free from intrusion from coworkers and the public” in which the employee may express milk. This space cannot be in a bathroom.
There are exemptions to these requirements. The mandatory break does not apply to employers who are not covered by the Fair Labor Standards Act, or those that have fewer than 50 employees AND can show that the break time 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.”
Under the FLSA, breaks of 30 minutes or less generally must be paid. This Amendment allows employers to treat the breaks for nursing mothers as unpaid. However, many employers may want to avoid the disparity of treating breaks for nursing mothers as unpaid when breaks for other reasons, such as smoking, remain paid. If an employer operates in a state that already provides even greater protections for nursing mothers, then the state law requirements continue to apply.
