Labor & Employment Alert: Workplace Maternal Protections for Nursing Mothers

Way back when the Affordable Care Act was enacted, it included a provision to protect nursing mothers who need to express milk at work. Because it was engrafted onto the Fair Labor Standards Act (which governs minimum wage and overtime, that version of the law pertained only to employees who were eligible for overtime pay).

In the Federal Appropriations Bill passed in December, Congress extended that coverage to employees who are overtime exempt – that is, most employees who are nursing are now entitled to the benefit of this protection. This advisory is intended to provide clarity concerning what your obligations are as an employer.

*The Department of Labor has issued a poster describing the rights under this law; however, at this time,
it appears to be voluntary whether an employer decides to post it or not.  A copy is available here.

What does the federal law require?

    1.      The employee is entitled to a reasonable break time to express breast milk for such employee’s nursing child for a period of one year following the child’s birth, whenever the employee has a need to express the milk.

    2.      The employer is required to make available:

        a.      a place, other than a bathroom, that

        b.      is shielded from view, and

        c.      free from intrusion from coworkers and the public.

 Does this extend to every employer?

Generally, yes; except that, while an employer that employs less than 50 employees is, technically, supposed to comply, it might be able to avoid this requirement — if that employer would be able to demonstrate that compliance 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. [Also, crew members on air carriers are exempt from the benefits of this law; and there are some limitations on the protection for some employees of rail carriers and motorcoaches.]

What if there are less than 50 employees at a single location?

All the employees who work for the covered employer count, even if they work at more than one location. It also includes part-time employees.

Are these breaks required to be paid time off?

No, provided that the employee is completely free from also conducting work at the same time. And, for an employer who customarily allows paid break time, the employee still receives pay, even though expressing milk during a break. Note, however, that for overtime exempt employees, an employer would continue to pay full salary for these breaks, just as it would do for other breaks in the course of a workday.

Does this need to be a “dedicated” space?

No. But, it does need to be available whenever the employee needs it — and during that time, it needs to satisfy the privacy requirements as well. It cannot be a bathroom.

When does this start?

It’s already the law. An employee can ask for this benefit right now. We should note that, the potential remedies of the new law will be expanded as of April 28, 2023 — which may give rise to renewed public interest in this new law and more awareness by employees.

What are examples of the kind of spaces employers have typically arranged to comply with this benefit?

• An empty office – even if the office is used during the day for work purposes — so long as the employee has privacy while expressing.

• An empty cubicle, so long as it is screened off in such a way as to assure privacy.

• An empty conference room, so long as the employee has privacy while expressing.

• An unused storage space or closet.

• A converted bathroom space, in which fixtures have been removed.

• A converted shower room, in which fixtures have been removed.

• A women’s lounge, in which space has been segregated for privacy.

• A one-person tent, if configured so that the employee can both stand up and sit inside of it.

• A vehicle.

• A temporary structure.

• A portable lactation station (a new portable rest room shell can actually be stripped out with a regular chair installed.

• A space borrowed or shared from another business in the vicinity.

• Allowing sufficient time off to go home.

 A word of caution in responding to employee requests for benefits. 

The law provides that, if an employee believes she has not been provided the benefits she is entitled to under this law, she is required to notify the employer and allow at least 10 days to correct the issue, prior to filing a court action — that advance notice might enable you to address the problem amicably and avoid all the “down side” of litigation. But, there is an exception: if the employer has either fired the employee or made it clear that it has no intention of complying with the law, then the employee is not required to give the warning notice. Which is to say, by acting definitively, the employer may lose the opportunity to fix the issue amicably and avoid litigation.

It is also worth noting that, because this law was tacked on to the existing Wage and Hour Statutes dealing with overtime and minimum wages, the few courts that have litigated the previously existing language have found it difficult to know what remedy they can offer — since the statute is focused on unpaid wages, but this provision does not mandate paying for the break time. There may actually be more potential court damages in a retaliation situation — that is, where the employee asserts that, because she complained or insisted on her rights, the employer retaliated, such as in terminating the employee’s employment. So, again, some measure of caution in responding to the situation may both resolve the complaint and avoid a claim of doing something retaliatory in the wake of a request for this benefit.