Buried in the many pages of the Patient Protection and Affordable Care Act signed into law on March 23, 2010, is a provision amending the Fair Labor Standards Act, which covers most employers, to require employers to provide employees with break time to express milk. The Department of Labor recently issued a fact sheet that provides guidance on the law.
Under the new law, employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and “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.” The frequency and duration of the breaks is left open-ended; essentially as much time as needed by the mother is required.
The location for nursing does not have to be dedicated for just nursing, but “it must be made available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.”
The break time can be unpaid, and the requirement applies only to non-exempt employees. Also, employers with fewer than 50 employees are not subject to this requirement if providing a break would cause an undue hardship based on factors such as the size, financial resources, nature, and structure of the employer’s business.
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