According to a recent New York Times article, it is “common among American employers” for companies not to “provide hourly workers with break time and a private place to pump.”
Employers that don’t allow new moms time to pump at work may violate any variety of state and local laws. That’s true in New Jersey and the City of Philadelphia, for example. However, employers that operate in states and localities without similar laws risk violating federal law by failing to provide reasonable time and space for women to express breast milk for her nursing child. It’s a little law called the Fair Labor Standards Act.
If it’s been a while since you’ve brushed up on the federal requirements, here’s what you need to know:
Somewhere other than the bathroom. Employers are also required to 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.” This is true even if the bathroom is private. Pick another private place. It doesn’t have to be dedicated to the nursing mother’s use, but it must be available when needed. A private, temporary space — not the bathroom — is fine.
How long and how often? It depends. (Of course, it does.)
Do all employers have to comply? Employers with fewer than 50 employees do not have to comply if it would impose an undue hardship. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
What is an undue hardship? It pretty much comes down to difficulty or expense. That’s a function of the employer’s size, financial resources, nature, and structure.
Do we have to pay employees who take breaks to express breast milk? Maybe. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are compensated for break time.
Do these FLSA rules apply to exempt employees too? No. However…
FLSA sets the floor. The amended FLSA does not preempt state/local laws that provide greater protections to employees.
Additional Resources. I’ve got lots for you.
- Fact Sheet #73: Break Time for Nursing Mothers under the FLSA [DOL]
- Break Time for Nursing Mothers FAQs [DOL]
- Break Time for Nursing Mothers under the FLSA (Microsoft® PowerPoint®) [DOL]
- Break Time for Nursing Mothers Poster [DOL]
- Break Time for Nursing Mothers Employee Rights Card [DOL]
- Supporting Nursing Moms at Work: Employer Solutions
- CDC Healthier Worksite Initiative, Workplace Lactation Support Program Toolkit
- EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities
- National Conference of State Legislatures Compilation of State Breastfeeding Laws
- U.S. Breastfeeding Committee, Workplace Support and Coalitions Directory
- International Lactation Consultants Association, Worksite Lactation Support Directory
- The Surgeon General’s Call to Action to Support Breastfeeding