New FLSA Amendment Requires Breaks for Nursing Mothers
April 2010
Tal Marnin
As part of President Obama's comprehensive health care reform law, most employers must now provide reasonable, unpaid break time to employees to express breast milk for their children. Specifically, pursuant to an amendment to the federal Fair Labor Standards Act (FLSA), an employee may take such break time "for 1 year after the child's birth each time such employee has need to express breast milk." In addition, the employer must provide the employee with "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public" for such purpose. The amendment to the FLSA is effective immediately.
Although the amendment states that such break time need not be paid, (i) breaks of 20 minutes or less for "non-exempt" employees must be paid pursuant to pre-existing FLSA regulations and (ii) employers cannot reduce the salaries of "exempt" employees for time spent on such unpaid breaks (because such reductions would be inconsistent with their exempt status). Employers that employ fewer than 50 employees are not subject to these new requirements only if such requirements would impose an "undue hardship 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."
Employers in many states, such as California and New York, are already required to provide reasonable break time for nursing mothers pursuant to state law, and the FLSA amendment does not preempt state laws that provide greater protections to nursing mothers. Although not expressly required by the FLSA amendment, employers should consider including a policy in their employee handbooks regarding break time for nursing mothers.
If you have any questions about the FLSA amendment and/or state laws relating to the rights of nursing mothers, please do not hesitate to contact us.
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