Abstract
Background
The nursing mothers' break time requirement became part of the FLSA when the Affordable Care Act was signed into law in March 2010. The Department of Labor's Wage and Hour Division (WHD) has been providing compliance assistance and enforcing the law since that time.
Request for Information
In December of last year the WHD published a Request for Information (RFI) 3 in the Federal Register and had a comment period of 60 days in which over 1,850 nursing mothers and employee and employer representatives submitted comments in response to the questions posed in the RFI. The RFI provided the Department's preliminary interpretations of the law and sought public comment on several issues. WHD consulted with public health officials at the Centers for Disease Control and Prevention and the Health Resources and Services Administration in developing the RFI. This article provides a brief overview of the law and the information provided in the RFI and briefly discusses the feedback that WHD received from the RFI and the challenges and opportunities that lie ahead.
Coverage—Who Does the Law Cover?
The break time for nursing mothers provision was added to the FLSA; therefore it applies only to employers that are covered by the FLSA. 4 Over 7 million employers in the United States are covered by the FLSA. 5 Because of the way the law was drafted, it applies only to workers who are not exempt from Section 7 of the FLSA, which includes overtime pay requirements.3,4 Nonetheless, the Department hopes that employers will provide this right to all workers, regardless of status under the FLSA.
In fact, some employers are already required to provide nursing mothers breaks under state laws. Over 20 states have passed laws related to workplace lactation. 6 To the extent that state laws provide greater protections to nursing mothers than the federal law (for example, requiring break time for all workers regardless of FLSA status, requiring paid break time, etc.), they are not preempted by the federal law. 7
Break Time
Covered employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother for up to 1 year after the birth of her child. 8 Although the law states that the break time does not have to be paid, 9 the Department has clarified that if the employer already provides paid break times, an employee who uses that break time to express milk must be compensated for that time in the same way that other employees are compensated for the break time. 10 The RFI lists the various factors employers should consider when determining what constitutes a reasonable time:3,11
• Time it takes to walk to and from the lactation space and the wait, if any, to use the space
• Whether the employee has to retrieve her pump and other supplies from another location
• Whether the employee will need to unpack and set up her own pump or if a pump is provided for her
• The efficiency of the pump used to express milk
• Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments
• The time it takes for the employee to store her milk in either a refrigerator or personal cooler
Space
Employers are also required to provide a space for the nursing mother to use to express milk. The law specifies that the space cannot be a bathroom. The space must be “shielded from view” and “free from intrusion” by others, in other words, a private space that could be used by the nursing mother to express milk. 12 As long as the space meets these requirements, employers may temporarily create or make available a space for use by the nursing mother. 10 Some of the space issues WHD sought input on in the RFI included:3,13
• Whether, and under what circumstances rooms that adjoin women's bathrooms, such as anterooms or lounges, could be compliant with the law
• Whether and under what circumstances locker rooms could be compliant with the law
• Examples of how employers have created shared space arrangements (e.g., at a mall or retail shopping center), or how employers have provided space for mobile workers
Approach to Implementation
At this time, the Department does not intend to issue regulations, in part because we recognize that because of the wide variety of work settings, work schedules, and the individual needs of nursing mothers, regulations may not be the most effective way to issue initial guidance to employers and employees. It is possible, however, that the Department could decide at a later date to develop regulations, if our experience administering and enforcing the law and the comments we receive in response to the RFI indicate that would be useful and effective.
The Department recognizes that there are many different kinds of work settings and work schedules and that the individual needs of a nursing mother will vary. For example, many of the nonexempt workers covered by this provision work in retail settings, restaurants, factories, or other environments where unused space may not be readily available. For these reasons, the Department expects that employers may need to be creative and consult with employees in order to meet their obligations under the law. It is unlikely that there will be a single approach that works for all employers or nursing mothers.
The Department has been consulting with other federal agencies, such as the Department of Health and Human Services, the Centers for Disease Control and Prevention, and the Equal Employment Opportunity Commission, as well as non-governmental organizations with expertise in workplace lactation issues, about how best to help employers and employees develop solutions that comply with the law.
Undue Hardship Exemption
The law provides an “undue hardship exemption” for employers with fewer than 50 employees that can demonstrate that compliance would pose significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. 14 This is not an automatic exemption for small employers. The way the law is drafted, employers would have to demonstrate that they meet the undue hardship factors as outlined in the statute (listed above). Also, the Department has explained that for purposes of determining whether an employer has 50 or fewer employees, all employees will be counted, regardless of work site. 10 The RFI provides a more detailed discussion of this provision.3,15,16
Enforcement
The Department's WHD is charged with administering and enforcing the FLSA, which now includes the nursing mothers' break time requirement.3,16 The enforcement of the FLSA is carried out by WHD investigators stationed around the country. These investigators respond to complaints and gather information from the employer and employee to determine compliance with the law.
The law does not specify any penalty if an employer is found to have violated the nursing mothers' break time requirement. Although the FLSA provides a private right of action to employees to recover unpaid wages, in most instances there will not be any unpaid wages associated with an employer's failure to provide breaks to a nursing mother. If an employer refuses to comply with the law, the Department could seek injunctive relief in federal court.
If a nursing mother has been discharged or discriminated against because she filed a complaint regarding her break time rights, she could file a retaliation complaint with the Department or file a private cause of action seeking remedies such as reinstatement and lost wages.
Next Steps—Challenges and Opportunities
WHD is currently analyzing the comments and determining what further guidance to issue. We received 1,852 comments on the RFI. Our preliminary analysis is that almost all of the comments were affirmatively in favor of the law. Many of the comments came from current or former nursing mothers who described their experiences and needs while pumping at work.
For the most part, the comments submitted appear to echo the Department's own assessment of the factors that are important to enable a nursing mother to effectively take breaks to express milk while at work.
In our initial comment review, it appears that some employer representatives were concerned about the notice requirement and encouraged the Department to require nursing mothers to give advance notice to their employers if they intend to pump at work so that the employer can make arrangements to accommodate them. Some employers were also concerned about identifying appropriate space for use by nursing mothers.
Our initial comment review also indicated that, as expected, the employers that are most challenged by the break time requirement are those with mobile workers or workers in non-office settings (e.g., restaurants, retail, delivery drivers, kiosks, and small vendors). There is a real need for research and training about the kinds of solutions that have been developed for nursing mothers in these types of workplaces.
Additional Information
For more information, please go to the Wage and Hour website (www.wagehour.dol.gov) and click on the Nursing Mothers link (www.dol.gov/whd/nursingmothers). The website includes general information and Frequently Asked Questions about the law, as well as the RFI that was published in December 2010, and links to other resources related to workplace lactation.
Footnotes
Disclosure Statement
No competing financial interests exist.