New Federal Law Requires Employers to Provide Breaks to Nursing Employees
As part of Congress’ overhaul of the health care system, the federal Fair Labor Standards Act was recently amended to require employers to accommodate nursing women in the workplace. This law, which took immediate effect, requires employers to provide nursing employees with “reasonable” break times to allow the employee “to express breast milk for her nursing child for 1 year after the child’s birth” each time the employee “has need to express the milk.” Further, the new law requires employers 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.”
All employers are required to comply with this new law. However, employers who have less than 50 employees may be exempt, but only if they can demonstrate that complying with it would impose an “undue hardship” on the employer “by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” It is anticipated that regulations will be issued in the near future that will further explain this “undue hardship” exemption.
The new law also provides that an employer “shall not be required to compensate” employees who take breaks for purposes of expressing breast milk unless required by other laws. However, given that this provision appears inconsistent with other provisions of the Fair Labor Standards Act that require other types of breaks to be paid and prohibit deductions from the wages of exempt employees, employers should proceed with extreme caution and consult with legal counsel if they decide not to pay employees for breaks taken for purposes of expressing breast milk. It is likely regulations to be issued by the Department of Labor will help clarify this issue.
In light of this new law, employers should take immediate steps to comply with its provisions by determining a suitable location in the employer’s facility that can be used by employees for purposes of expressing milk. Employers should also update their employment policies to comply with this new law and advise their employees as necessary.