Expressing Breast Milk At Work-A State and Federal Law

Look, after thirty-two years of trying to keep employers out of hot water, I know some of you may find this topic “amusing” for lack of a better word. Stay away from jokes and any kind of innuendos. One of my clients, the CEO of the company, came upon his administrative assistant expressing her breast milk in the break room. In a moment of what I later deemed to be insanity, he looked at his employee and stated, “Oh, if I’d known you were going to be doing that, I would have brought cookies!” Do you think she sued?

Now, before you ask, yes, this really is a wage and hour law issue (and can be gender discrimination as well), as the new rules regarding nursing mothers included in the Patient Protection and Affordable Care Act of 2010 have been added as amendments to the Fair Labor Standards Act. So, what does this mean? The feds are also affording protections in this area.

Here’s what the law requires:

• Employers with 50 or more employees must provide “a reasonable break time for an employee to express breast milk for nursing her child for 1 year after the child’s birth each time such employee has need to express the milk.”
• The employer must provide “a place, other than a bathroom, that is shielded from view and free from intrusion of coworkers and the public, which may be used by an employee to express breast milk.”
• Employers with fewer than 50 employees are subject to the same requirements unless complying with the law “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.” 
• Employees do not have to be paid if they take a break during work time under the law.

There are a few important things that employers should keep in mind with respect to this law:

1. While the additional leave provided by the law can be unpaid, employees who use what would otherwise be a paid break in order to express milk must be compensated in the same manner as other employees for the break time. Additionally, for break time under the law to be unpaid, the employee must be “completely relieved of duty,” and should not perform any work.
2. The law does not apply to employees who are exempt from Section 7 of the Fair Labor Standards Act, which is the section governing overtime. Accordingly, executive, administrative, and professional employees, as defined under the FLSA, are not entitled to breaks to express milk under federal law (but under state law they could be so grant the time to exempt employees as well).
3. While there is an “undue hardship” exception for employers with fewer than 50 employees, there is no such exception for employers with 50 or more employees. In other words, larger employers are required to comply with the law even if doing so would be expensive or disruptive to their operations. 

In closing, please make sure you have a “Lactation Policy” in your handbooks the next time you update it.