By: Destyn Stanton [5/10/22]

Under the Break Time for Nursing Mother’s provision of the Fair Labor Standards Act (FLSA), employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “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.” Understanding the Break Time for Nursing Mothers provision and implementing a company lactation policy will promote employee retention and satisfaction and prevent liability.

When does the law apply?

All employers with 50 or more employees must comply with the FLSA’s break time requirements. Businesses with fewer than 50 employees are exempt if compliance would impose an undue hardship on the employer. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.

How much break time is required?

At a minimum, employers must provide “a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” The frequency and duration of the pumping breaks vary among women, so flexibility is important. Most women will need two or three breaks during a standard eight-hour workday. In addition to the time spent expressing milk (typically 15 to 30 minutes per session), women may need time for setting up, cleaning up, and storing the milk.

While women may choose to use their standard breaks and meal periods to pump breast milk, they are not required to do so. Employers are not required to pay employees during pumping breaks; however, if an employee uses break time that is already paid time, she must be compensated in the same way as other employees for that time. In addition, the employee must be completely relieved from her work duties during the break, or else the time must be compensated as work time.

Is a designated space necessary?

To accommodate employees who need to express breast milk, the FLSA requires that employers provide a place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public. This often requires that employers install a lock on the door or block an area from visibility with appropriate signage to dissuade others from entering. For outdoor workplaces, a pop-up tent or portable shell may be necessary.

Bathrooms are not acceptable spaces to accommodate pumping employees under the law. Bathrooms are places to eliminate waste and wash your hands afterward to prevent the spread of germs and disease. Breast milk is food and should be handled in the same sanitary manner as other food.

The space offered to employees does not have to be a permanent, dedicated lactation room. Flexible and temporary options, such as a coworker’s office or a portable lactation suite, are sufficient and may be most practical for employers with space constraints. What is important is that the space is a private, designated area available to the employee when she needs it to express breast milk. The space can be converted to other purposes when she is not using it.

A designated, private, and comfortable lactation space is necessary because mothers should be seated and not stressed to promote optimum milk flow. Although a baby can be nursed relatively discreetly using a nursing cover and with minimal cleanup, pumping is a much different experience. With the exception of wearable pumps, a woman must remove part of her clothing and cannot easily conceal herself. Most pumps plug into the wall and make a distinctive, very audible pumping sound. Afterwards, the pump parts and pieces need to be cleaned, and the breast milk must be stored properly in a cooler or refrigerator.

Although not required by law, offering a space with any of the following items will greatly improve your employee’s experience and make it easier for her to pump and return to work more efficiently:

  • Chair
  • Adjacent table for the breast pump to rest on
  • Electrical outlet
  • Paper towels or other wipes to clean up
  • Mirror for the employee to use when getting dressed
  • Storage space for the pump and supplies
  • White noise machine to block the pump’s distracting noise for coworkers
  • Sink with running water and soap, and
  • Refrigerator for storing milk, if possible.

Takeaway

Employers should establish consistent yet flexible lactation policies to support breastfeeding mothers in the workplace and to comply with the law. Providing a comfortable private space for the expression of breast milk allows employees to express milk more efficiently and successfully, reduce break time, and feel a greater sense of job and personal satisfaction.

At Dunlap Bennett & Ludwig, we believe that employers and employees need to understand their rights and responsibilities under state and federal employment laws. Above all, we are dedicated to helping clients create a positive work environment. To learn more about Dunlap Bennett & Ludwig and how we assist you with your legal matters, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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