Department of Labor Clarifies Break Time Requirements for Nursing Mothers
Department of Labor Clarifies Break Time Requirements for Nursing Mothers
July 26, 2010
Among the many provisions in the new health care law, the Patient Protection and Affordable Care Act (the “Act”), is a requirement that employers provide reasonable break time for nursing mothers to express breast milk in the workplace. You may recall our Advisory explaining this requirement, which took effect March 23, 2010. Since then, employers have questioned how these nursing breaks must be administered. A fact sheet recently issued by the Department of Labor (“DOL”) sheds light on some of these questions, as explained below:
- Effective Date: The provision of the law that created the reasonable break time for nursing mothers requirement contained no effective date. The DOL has confirmed that this requirement became effective when the Act was signed into law on March 23, 2010.
- Temporary Private Space: Employers are required to provide a private space shielded from view and intrusion for nursing mothers. The DOL’s fact sheet clarifies that the private space may be a temporary or converted space that is made available for nursing mothers only when needed.
- Exempt Employees: The Act amended the overtime provisions of the Fair Labor Standards Act. The DOL has clarified that, as a result, nursing mothers who are classified as exempt are not entitled to break time under this law. Exempt employees may still receive protection under certain state laws.
- Compensated Breaks: As a general rule, breaks for nursing mothers are uncompensated. However, if an employer already provides compensated break time to its employees, the DOL has clarified that nursing mothers must be compensated for such break time as well (regardless of whether they decide to express milk during that break time).
- Frequency of Breaks: The DOL has attempted to clarify how frequently nursing mothers may take break time to express breast milk, stating such breaks should be given “as frequently as needed by the nursing mother.”
Notwithstanding these clarifications, employers still have a number of questions that the DOL has yet to address. Here are some of the questions that we have received from employers:
- How long can a reasonable break last?
- What factors determine a reasonable break?
- May employees be asked to provide medical certification to verify their status as nursing mothers?
- Can large employers with small retail locations (and few if any private areas) avail themselves of the “undue hardship” exception, which currently only applies to employers with fewer than 50 employees?
- What happens when a nursing mother performs work at a job site that is not controlled by her employer, such as when a nursing mother visits a client?
- How will violations of the break time for nursing mothers requirement be enforced?
Based on these ambiguities in the Act, we expect to see some additional guidance from the DOL. It remains to be seen whether the DOL will be issuing regulations in the near future. The Troutman Sanders LLP Labor & Employment Group can help you answer these and other questions you may have, and will continue to closely monitor further guidance on the Act’s break time requirements to keep you informed of the latest developments.