FLSA Amended To Accommodate Nursing Mothers

April 8, 2010

Under the Patient Protection and Affordable Care Act of 2010, Congress amended Section 7 of the Fair Labor Standards Act (FLSA) to require reasonable breaks for nursing mothers. FLSA-covered employers must provide unpaid, "reasonable" breaks each time an employee needs to express breast milk for her nursing infant who is up to one year old. The employer also must furnish a private space, other than a bathroom, for that activity. That space must be shielded from view and free from interruption.

Employers with less than 50 employees do not have to comply if (and it is a big "if") doing so would impose an undue hardship. "Undue hardship" means the above-referenced requirements would cause "the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."

This FLSA amendment is not without ambiguity. Other than the vague qualifier "reasonable," there is no express limitation on the number or length of those breaks. Moreover, depending on the length of the break, the new FLSA amendment (mandating that the break need not be paid) appears to contradict existing Department of Labor regulations that require rest periods of short duration (5-20 minutes) be paid. 29 C.F.R. ยง785.18. To further complicate matters whether a break must be paid, in whole or part, also may depend on whether the employee is exempt or non-exempt and whether a particular state's law already mandates that certain breaks are paid. The new FLSA amendment does not preempt those state laws that provide greater protections to nursing mothers in the workplace.

Currently, there is debate on the effective date of the amendment.  The amendment also does not list a set penalty for noncompliance. Accordingly, until the Department of Labor implements instructive regulations addressing this new federal entitlement, employers should consult with counsel to develop a measured response to future workplace requests to express breast milk.

For additional information, please contact Jeffrey Shoskin, David Hoskins, or any other attorney in Frost Brown Todd's Labor and Employment Practice Group.