Healthcare Reform Amends FLSA To Require Breastfeeding Breaks

Published July 2010

With the recent passage of the Healthcare Reform acts last March, many employers are not aware of a new provision amending parts of the federal Fair Labor Standards Act (FLSA) to establish employer breastfeeding accommodation requirements for employees who are nursing mothers. While more than 20 states already have existing laws in place to protect nursing mothers in the workplace, all employers need to make sure they remain in compliance. The following summarizes what should be considered and applied in the workplace:

  • Employers are required to give nursing mothers “reasonable” unpaid breaks to express breast milk for their infants during work.
  • While the FLSA regulations specify that employees should be compensated for breaks lasting fewer than 20 minutes, the amendment specifies that breastfeeding breaks do not count as compensable time unless the employer designates otherwise.
  • The FLSA does not preempt state law providing greater protections to breastfeeding mothers. In situations where one law provides more generous benefits than the other, employers are required to apply the law that is most beneficial to the employee.
  • It is the employer’s responsibility to provide a private place, other than a bathroom, that is shielded from view and free from disturbances (i.e. visible individuals or noise) for an employee to express breast milk.
  • Employees must be allowed breastfeeding break opportunities for a minimum duration of one year from the newborn’s date of birth.
  • Companies with fewer than 50 workers may be exempt from the requirements if the employer can demonstrate that the rules would impose an undue hardship of significant difficulty or expense due to the size, financial resources, nature, and / or structure of the employer’s business.

Employers should create or revise their current policies on breastfeeding and expressing milk in the workplace. A well-crafted policy encompasses:

  • Flexible work schedules and breaks,
  • Reasonable location allowing privacy to express breast milk,
  • Access to a sink for washing hands and rinsing breast-pump equipment; and
  • Access to hygienic/refrigerated storage alternatives for the mother to store her breast milk

In addition, employers need to be mindful of not discriminating or creating an environment of resistance against employees exercising their rights to breastfeed.