Department of Labor Seeks Employer Input on Nursing Mother Legislation

We recently reported that in March of 2010, the Patient Protection and Affordable Care Act (better known as the Health Care Reform Bill) enacted legislation which provides reasonable break time for nursing mothers. This law serves to amend Section 7 of the Fair Labor Standards Act and requires that covered employers must provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers must 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 an employee to express breast milk.” The location 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. 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 from coworkers and the public.

The break time requirement only applies to employees who are not exempt from the FLSA’s overtime pay requirements and employers with less than 50 employees are not subject to this break time requirement if compliance would impose an undue hardship (defined as the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business). All employees who work for a covered employer, regardless of work site, are counted when determining whether this exemption may apply.

The United States Department of Labor administers and enforces the Fair Labor Standards Act through its Wage and Hour Division. At the time the legislation was passed, the Department of Labor did not specify any minimum number of, frequency of, or duration for these breaks, but rather stated that the frequency and duration of each break will likely vary from employee to employee, and employers must provide breaks as frequently as needed by the nursing mother.

The Department of Labor has now published a Request for Information (RFI) seeking public input on the Nursing Mothers’ Amendment to the Fair Labor Standards Act. The RFI serves two purposes: it provides preliminary interpretations of the law and seeks information from employers so that it may more fully understand the practical implications of the law that may need to be addressed in final guidance documents.

The RFI seeks to clarify the following issues:

• How the requirements of the Fair Labor Standards Act regarding break times that must be paid impact the nursing mother breaks. The law currently provides that employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, 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.

• What is a reasonable break period, taking into consideration the location of the designated area, its location compared to the employee’s work area, a place to clean and store the breast pump, etc.?
• How employers may best meet the Department of Labor’s criteria for a compliant location for expressing milk. The Department of Labor acknowledges in this RFI the challenges of space, working in the field, and employees working at client sites.
• What notice an employee is expected to provide to the employer regarding the need for such breaks.
• What are the specific parameters of the undue hardship exemption?
• Interplay with leave requested under Family Medical Leave Act. As it now stands, the Department of Labor does not consider breaks to express breast milk to be FMLA leave or to be counted against an employee’s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the Department of Labor does not consider expressing milk at work to constitute bonding with or caring for a newborn child.
• Enforcement issues – what are the penalties for noncompliance with this Amendment? Could a pattern of denying such leave be the basis of a disparate impact claim?

The Department of Labor welcomes comments and other input from employers regarding the above issues and any other concerns raised by the new Nursing Mothers’ Amendment, and will accept these comments through February 22, 2011 via email at https://www.regulations.gov or by mail addressed as follows:

Montaniel Navarro
United States Department of Labor
200 Constitution Avenue NW
Room S-3502
Washington DC 20210

If you have questions about this or other employment-related issues, please contact Connie Carrigan, ccarrigan@smithdebnamlaw.com.