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eLABORate: The Department of Labor Publishes Request For Information and Public Comment

February 08, 2011

In one of our prior eLABORates, we advised our readers that as part of the March 2010 Patient Protection and Affordable Care Act, an amendment was made to the Fair Labor Standards Act (“FLSA”), providing for reasonable break time for an employee to express breast milk for a nursing child.  The obligations for an employer to provide break time is for up to one year after the child’s birth.  Under the terms of the amendment, an employer must provide a private place for the employee.  Notably, this requirement is applicable only with respect to hourly workers and those employers who have more than 50 employees.  For those employers who have less than 50 employees, they may be exempt from the requirement if they are able to show undue hardship.  As we advised in our eLABORate on this amendment, employers must be cognizant of any state laws which provide greater protection to nursing mothers.

Many employers had awaited detailed regulations from the Wage & Hour Division of the United States Department of Labor for further guidance on the new break time amendment.  Unfortunately, the Wage & Hour Division bypassed providing detailed regulations and opted instead to publish a Request For Information and Public Comment.  The Request For Information provides helpful interpretations of the break time amendment, clarifying that nursing break time may be treated the same as other breaks.  Accordingly, the nursing break time need not be paid unless of course it would be considered work time under standard break time requirements under the FLSA.  Moreover, a nursing employee could use any paid breaks for expressing milk and that break, albeit used for nursing purposes, would be paid. 

One question addressed by the Wage & Hour Division which is very helpful is how long the break should be.  The Wage & Hour Division encourages employers to be flexible and to consider factors such as the child’s age, whether solid food is being consumed, etc.  Although the Wage & Hour Division notes that the time for breaks may be varied based on the location of a private facility as well as the availability of water, refrigeration, etc., the Wage & Hour Division estimates that nursing mothers will typically need two to three breaks in an eight hour shift and twenty minutes should be expected. 

As we previously noted, the space dedicated for nursing mothers to express breast milk must be private and the space provided cannot be a bathroom.  The Request For Information makes clear that the area provided must be accommodating to the nursing mother in that it must provide a place to sit, a flat surface on which to place the pump, as well as an electrical outlet.  The guidance further indicates that if refrigeration is not available, the nursing employee should be allowed to bring a cooler for the milk. 

The Wage & Hour Division has solicited public comments on its recent Request For Information.  Comments must be received on or before February 22, 2011.  The Wage & Hour Division’s Request for Information can be found at the following url: www.dol.gov/whd/nursingmothers.  Moreover, the DOL has issued a very good fact sheet discussing employer requirements under the break time amendment.  The fact sheet can be located at the following url:   www.dol.gov/whd/regs/compliance/whdfs73.pdf.