DOL Seeks Comment on Issues Related to Reasonable Break Time for Nursing Employees

The DOL’s Wage and Hour Division (WHD) will issue a request for information (pdf) in Tuesday’s edition of the Federal Register regarding the new requirement that most employers provide a reasonable break time for lactating mothers. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing to express breast milk for up to one year after the child’s birth. The notice to be issued by the WHD includes the DOL’s preliminary interpretations of the new break time amendment, and seeks information and comment on a number of issues that have arisen under the new requirement. The WHD notes, however, that at this point it does not intend to issue regulations implementing the break time provision. The request for information is solely for the purpose of drafting additional employer guidance.

Specifically, the Notice outlines the following key issues in which the WHD seeks public comment:

  • Unpaid Break Time. The break time is generally unpaid, although if an employer permits short breaks, that time must be counted as hours worked for FLSA minimum wage/overtime purposes. If a break is paid, any time taken beyond the paid break time is unpaid. An employer is not required to permit employees to extend their work day to make up for the uncompensated break time, although the DOL encourages employers to be flexible.
  • Reasonable Break Time. The WHD expects that nursing employees will need breaks to express milk two to three times during an eight hour shift. Longer shifts will require additional breaks. The length of time needed per break will necessarily vary, but will typically take 15 to 20 minutes. Factors employers should consider in determining whether the time requested is “reasonable” include: i) the time it takes to walk to and from the lactation space and the wait, if any, to use the space; ii) whether the employee has to retrieve her pump and other supplies from another location; iii) whether the employee will need to unpack and set up her own pump or if a pump is provided for her; iv) the efficiency of the pump used to express milk (employees using different pumps may require more or less time); v) 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; and vi) the time it takes for the employee to store her milk either in a refrigerator or personal cooler.
  • Space for Expressing Breast Milk. The WHD Notice provides its interpretation under various circumstances of the statute’s requirement that employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” For example, the WHD explains that while a bathroom would not meet this requirement, an anteroom or lounge area connected to the bathroom may be sufficient under certain circumstances. Locker rooms that function as changing rooms may also be adequate so long as there is a separate space designated within the room for expressing milk that is shielded from view and free from intrusion. A locker room that is not sufficiently separated from the toilet area would not suffice. The WHD notes that it “is aware that many such employers have found ways to provide break time and space for nursing employees even though there was no readily available ‘unused’ space.” To that end, the WHD seeks comments “that address the conditions under which spaces such as manager’s offices, storage spaces, utility closets, and other such spaces normally used for other purposes could be considered adequate spaces for use by nursing mothers under the statute. In addition, the Department solicits comments on the kinds of shared space arrangements that would be acceptable under the law.” The WHD is also interested in ways an employer can provide adequate break time and space for lactating employees who do not work in a fixed location during a shift. Moreover, the WHD states that it has received inquires from employers as to their obligation to provide lactation space when the employee works at a client’s location. The Department suggests that the employer discuss an arrangement with the client, but seeks alternative recommendations.
  • Notice. The WHD solicits comments on how an employee should notify the employer that she will be taking advantage of the reasonable break requirement.
  • Undue Hardship Exemption. The undue hardship exemption is available for employers with fewer than 50 employees that meet certain conditions only. Any individual employed by the employer is counted toward this number. The DOL intends to use the FLSA workweek standard for purposes of counting whether the employer has fewer than 50 employees. The DOL believes it is unnecessary, however, to fix the workweek at which the number of employees are counted for purposes of this exemption. The agency seeks comment “as to the appropriate point at which to count the number of employees for purposes of determining whether the employer may assert an undue hardship defenses. The Department is considering whether the number of employees should be counted in the workweek in which the employee notifies the employer that she intends to take breaks to express milk, in the first workweek the employee intends to utilize the breaks and the space to express milk at work, or at some other point.” The DOL notes it will not grant prospective undue hardship exemptions.
  • Relationship to Family and Medical Leave Act. The DOL has taken the position that lactation breaks do not constitute FMLA leave.
  • Enforcement. An employee who believes her employer has failed to comply with the lactation break requirements is entitled to seek injunctive relief in federal court, and may obtain reinstatement and lost wages is applicable.

Comments on the WHD’s notice are due within 60 days of its publication in the Federal Register, which is scheduled for December 21, 2010. Comments must contain the regulatory identification number (RIN) 1235-AZ00, and be submitted via the federal eRulemaking Portal or by mail to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room S-3502, Washington, D.C. 20210.

For more information on this the Affordable Care Act’s break time requirement, see Littler’s ASAP: FLSA Amended to Require Breaks and Space to Express Breast Milk for Nursing Mothers by Julie A. Dunne and Mendy Mattingly.

Photo credit: camilla wisbauer

 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.