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Maternal and paternal leave have been common topics of conversation, and sometimes debate, in the U.S. for years. Yet, little discussion occurs around how to welcome new parents back after leave. Mothers, especially nursing mothers, face unique challenges in their return to the workplace. It is important that employers understand nursing mothers’ rights under federal and state law. Like much of employment law, federal law (here the Fair Labor Standards Act) serves as the baseline—states are free to grant nursing mothers additional rights to the FLSA’s. Knowing this, employers should be sure to check their state’s requirements before implementing any policy on nursing mothers.
So, what are the FLSA’s baseline requirements? Have a lactation room—easy! Right? Well, a lactation room must be shielded from view, but it cannot be in a bathroom, and nursing mothers get breaks, but only for a year—okay so, still easy-ish! Kidding aside, employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide a room, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” Bathrooms with an anteroom or lounge areas connected may be sufficient if that anteroom or lounge is private and free from intrusion. Rooms such as changing rooms or locker rooms may also be adequate as long as there is a separate, private space designated for pumping milk. It is worth noting, however, that the Department of Labor has expressed concern that locker rooms may not be appropriate because wet environments are at a higher risk for contamination. Nursing mothers produce food, and the lactation room provided must be sufficiently sanitary to prepare and handle any kind of food.
Generally, employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. State law may also expand this category to include exempt employees. An employer with fewer than 50 employees, however, will not be subject to the break time requirement if compliance would impose an undue hardship. Be careful, though, undue hardship is “harder” to prove than you might think. Lastly, employers are not required to compensate for breaks taken to pump, unless an employee uses a previously provided, and compensated, break to do so or was not completely relieved from duty during the break.
Like all other FLSA issues, employers cannot retaliate against any employee who file a complaint under the Act. There is also a prohibition on retaliation against employees who ask about their rights. Even employees who are not eligible to take breaks to pump at work cannot be retaliated against for asking.
Breaks to express milk and lactation rooms are important for nursing employees, retention and attracting new employees. Our goal at Miller Johnson is to help employers feel comfortable when this situation arises. Your attorney will be happy to help you with any questions or concerns.
Contact the author Bridget McConville.
