Many businesses routinely face the question of what to do when a nursing employee asks that she be allowed to take a break to express milk at work and that she be allowed to do so in a private space? Does an employer have to grant her request? What if a business does not have a private place for a mother to use? How many breaks is she allowed to take? For how long? Does an employer have to pay for the break time? This blog post answers these and many other questions that arise from this simple but very common situation and explains why, even when not required to do so under the law, it might be wise for a business owner to permit its female workers to nurse at work.
Under the “Affordable Care Act”, which amended Section 7 of the Fair Labor Standards Act (“FLSA”), employers must provide (1) a reasonable break time for employees to express breast milk for nursing children for one year after a child’s birth and (2) “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which can be used by employees to express breast milk.”
Additionally, in Texas, “a mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.” Texas Health & Safety Code, Sec. 165.002. So, if you allow your employees to bring their babies to work, you may not prohibit them from nursing.
Are All Employees Entitled to the Nursing Break Time?
Only non-exempt employees under Section 7 of the FLSA are entitled to nursing breaks. An employer does not have to provide such breaks to exempt employees.
Do All Businesses Have to Comply with the Nursing Break Time Requirements?
Employers with 50 or more employees must comply with the law without exception. Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. An employer should count all part-time and full-time employees at all work sites.
What is “Undue Hardship”?
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, and structure of the employer’s business.
The Department of Labor (DOL) will not grant prospective undue hardship exemptions to employers. Instead, if an employee files a complaint with the DOL that the employer failed to meet the nursing break requirements, the employer will have an opportunity at that time to demonstrate to the DOL why it qualifies in that instance for an undue hardship exemption based on the statutory factors.
What Kind of Place Must Employers Provide for Nursing?
The employer is not obligated to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient provided that the space is shielded from view, and free from intrusion from coworkers and the public. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.
A bathroom, even if private, is not a permissible location under the FSLA.
What is a “Reasonable” Nursing Break Time?
What is reasonable will depend on the circumstances. However, as a general rule, the DOL expects that nursing mothers typically will need breaks to express milk two to three times during an eight hour shift. Longer shifts will require additional breaks to express milk.
The length of time necessary to express milk also varies from woman to woman. The act of expressing breast milk alone typically takes about 15 to 20 minutes, but there are many other factors that will determine a reasonable break time. Employers should consider these factors when determining how they will provide both reasonable break time and space for nursing mothers.
Do Employers Have to Compensate Employees for Nursing Break Time?
No. Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. 29 U.S.C. 207(r)(2). The FLSA does not require an employer to provide its employees with rest periods or breaks. Where an employer already provides paid breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are compensated for break time.
The FLSA‘s general requirement that the employee must be completely relieved from duty applies; if a nursing employee is not completely relieved from duty during a break to express breast milk, the time must be compensated as work time.
Do Employers Have to Provide a Place to Store Milk?
No. The DOL interprets an employee’s right to express milk for a nursing child to include the ability to safely store the milk for her child. While employers are not required to provide refrigeration options for nursing mothers for the purpose of storing expressed milk, they must allow a nursing mother to bring a pump and insulated food container to work for expressing and storing the milk and ensure there is a place where she can store the pump and insulated food container while she is at work. This is similar to providing employees with a place to store lunch or meals that they bring to work in insulated food containers.
Can Employers Ask About Employees’ Intention to Use Nursing Breaks?
Yes. The DOL notes that an employer may ask an expectant mother if she intends to take breaks to express milk while at work. Doing so informs employees of their rights under the law and allows the employer the opportunity to make any necessary adjustments to comply with the law.
Is Time Taken for Nursing an FMLA Leave?
No. The DOL does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the DOL does not consider expressing milk at work to constitute bonding with or caring for a newborn child. See 29 CFR 825.120. Also, while an eligible employee may take FMLA leave due to her own serious health condition, the DOL does not believe that expressing milk will typically be associated with a serious health condition under the FMLA. See 29 CFR 825.113-115.
Can Employers Fire Employees Instead of Providing a Nursing Break Time?
No. In 2013, the Fifth Circuit Court of Appeals in EEOC v. Houston Funding, II, held that lactation is a medical condition related to pregnancy and that discrimination against an individual because she is lactating or expressing milk is unlawful sex discrimination under the Pregnancy Discrimination Act and Title VII. Thus, you may not fire, demote, or otherwise discriminate against an employee because she is nursing or because she has made a request for a nursing break.
What are the Repercussions for Failing to Provide a Nursing Break Time and Place?
Technically, if an employee asks for a nursing break time and a private space and the employer fails to comply with the request, the only negative consequence is that the DOL may order the employer to comply with the FLSA requirements, after conducting an investigation. However, practically speaking, an employer who resists a request for an accommodation from a nursing employee, may be subject to an investigation by the DOL’s Wage and Hour Division, which is charged with enforcing both the nursing break time provision and wage and hour violations. Think about it: do your really want to risk having a DOL investigator discover some wage and hour violation while investigating a nursing break time violation? Before refusing to accommodate a request for a nursing break or time, consider whether it is truly motivated by undue hardship and is it really worth it having a DOL agent requesting information about your business and employment practices.
Additionally, if an employer terminates a nursing mother employee because she takes breaks to express milk that she is entitled to under the FLSA, or because she has informed her employer that she intends to take breaks to express breast milk, this would be considered a violation of 29 U.S.C. 15(a)(2) (i.e., an unlawful violation of section 7(r)). In such a case, the DOL could pursue injunctive relief in federal district court and seek reinstatement and lost wages for the employee, and the employer would have to hire an attorney to handle the lawsuit.
Additionally, as with any other discrimination claim under Title VII, the employee may pursue a private lawsuit seeking reinstatement, lost wages, and other appropriate remedies, including intentional infliction of emotional distress and mental anguish. 29 U.S.C. 215(a)(3), 216(b).
Leiza represents both employers and employees in handling pregnancy discrimination and pregnancy retaliation claims. If you need help in this area, contact Leiza Dolghih for a consultation at Leiza.Dolghih@GodwinLewis.com or (214) 939-4458.