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Breastfeeding Breaks for Nursing Moms Required Under Federal Law

May 3, 2010
Labor and Employment Advisory

The new health care reform law contains one surprising change for businesses: Employers must now provide "reasonable break time" each day for nursing mothers to express breast milk. The Patient Protection and Affordable Care Act of 2010 amended the Fair Labor Standards Act to require breaks for breastfeeding mothers for up to one year following the birth of their child. The Act places no limit on the number of breaks that must be provided per day, nor does it contain any guidance as to how long the breaks should be.

In addition to requiring "reasonable break time," the Act also requires employers to provide a private place, other than a restroom, where employees can express breast milk. Employees "must be shielded from view and free from intrusion from coworkers and the public."

Employers with fewer than 50 employees are exempt from this "lactation break" requirement if it "would impose an undue hardship by causing the employer significant difficulty or expense." In addition, covered employers are not required to compensate employees for the time spent on such breaks. However, due to possible conflicts with both the FLSA's compensable time provisions and disparate treatment concerns under state and federal fair employment laws, employers who provide paid break time to employees for other purposes (such as coffee breaks) may want to consider providing paid lactation breaks to nursing mothers to the same extent.

This new requirement, which appears to take effect immediately, will have a potentially significant impact on Michigan employers, as previously there was no state or federal law requiring breaks for most employees, including lactating employees. In those states which already have laws that address nursing mothers in the workplace, the state's more generous provisions, if any, will continue to apply.

Employers with 50 or more employees should immediately review and, where necessary, revise their policies on break time to ensure they are in compliance with the new law. Employers should also evaluate the physical layout of their facilities to identify a suitable private place or places where nursing mothers can take these breaks.

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