The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth.

As discussed in the fact sheet, the frequency of breaks and duration of these breaks will likely vary, and must take place in a space other than a bathroom (even if the employer’s bathrooms are private). Spaces temporarily created or converted into a lactation area 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 co-workers and the public.”

With respect to coverage and compensation, the WHD explains that only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to these lactation breaks, and that employers with fewer than 50 employees total (all employees are counted for purposes of applicability regardless of where they work) are not required to comply with these break requirements if doing so would impose an undue hardship. Whether this requirement would impose an undue hardship is determined by considering the difficulty or expense of compliance for a specific employer in relation to the size, financial resources, nature and structure of the employer’s business. The new requirements do not, however, preempt state laws providing more generous lactation break benefits.

Finally, the DOL clarifies that employers are generally not required to compensate employees while they are on lactation breaks, but would be required to do so if they already provide paid break time and the nursing employee uses such time to express milk.

For more information on this new requirement, see Littler’s ASAP: FLSA Amended to Require Breaks and Space to Express Breast Milk for Nursing Mothers by Julie A. Dunne and Mendy Mattingly.

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