DOL Issues Guidance on Breaks for Nursing Mothers Under the FLSA

Recently, the U.S. Department of Labor's (DOL) Wage and Hour Division posted a new fact sheet that provides guidance to employers on the break time requirement for nursing mothers to express milk in the Patient Protection and Affordable Care Act.  The Act became effective on March 23, 2010, and amended Section 7 of the Fair Labor Standards Act (FLSA.)  Regarding the time and location of breaks, DOL has not specified any minimum number of, frequency of, or duration for these breaks.  However, the fact sheet explains that "employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother," and "the frequency of breaks needed to express milk as well as the duration of each break will likely vary." As previously determined, a bathroom, even if private, is not a permissible location and the space provided - even if temporarily created or converted into a space for expressing milk and made available when needed - must be functional as a space for expressing breast milk, be shielded from view, and free from any intrusion from co-workers and the public. The fact sheet also explains how employers with 50 or fewer employees are to determine if they may be excluded from complying with the new law if it would impose an undue hardship.  Employers must count all of their employees, regardless of the work site, and while exempt employees are included in the count, the provision does not apply to employees who are exempt from overtime under the FLSA, even if the employer is determined to be a covered employer. Employers are advised to check state laws regarding the necessary requirements for nursing mothers, particularly because this new federal mandate does not preempt state laws with more generous provisions.  For more information, read AGC's article "New Health Care Law Requires Accommodations for Nursing Mothers; May Pose Challenge for Construction Industry."