Mandated Breaks for Nursing Mothers – Employer Obligations
The Patient Protection and Affordable Care Act amends Section 7 of the Fair Labor Standards Act (“FLSA Amendment”) and requires certain employers to provide mandated breaks to mothers who are nursing during the first year after the birth of a child. The FLSA Amendment applies only to non exempt employees. Employers are required to designate a place within its facilities, other than a restroom, where a nursing mother can express breast milk without being interrupted or viewed by coworkers or visitors which means that the area must be screened from view. While there is no requirement that an employer pay a non-exempt employee for these break periods, note that if the employee uses her regular 15 minute break period for the purpose stated here, then the employee must be paid for the break period. Another important aspect of the law that should not be overlooked is the fact that an employee is permitted to take these breaks whenever the employee needs to express breast milk, which means that the employee is entitled to take additional break time at the employee’s convenience, not the employer’s.
While the requirements imposed by the FLSA Amendment only applies to non-exempt employees, serious consideration should be given to allowing a salaried-exempt employee who is a nursing mother the same flexibility to take breaks to express breast milk under the same conditions as non-exempt employees to avoid morale issues in the workplace.
The FLSA Amendment provides a limited exception for employers with fewer than 50 employees. For the purpose of determining the number of employees employed by the employer, all employees are counted regardless of work location. An employer claiming an exemption must show that compliance with the FLSA Amendment imposes an undue hardship and as a result of the hardship it should be relieved of its compliance obligations under the FLSA Amendment. When determining whether complying with the FLSA Amendment causes undue hardship, the analysis requires the employer to take into account the size of its facility, facility layout, financial resources, and the nature and structure of its business.
In light of the new mandated requirements under the FLSA Amendment, employers are well advised to establish a written policy that complies with requirements of the FLSA Amendment and update their employee handbooks.
1. A non-exempt employee under the Fair Labor Standards Act is an employee who is entitled to time and one-half for hours worked in excess of 40 hours per week.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. This article has been reprinted with the permission of Lee Building Industry Association, www.bia.net. Questions regarding the content of this column or past columns may be e-mailed to Christina Harris Schwinn at firstname.lastname@example.org. To view past columns written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is an experienced employment lawyer and a partner with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.