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Many employers are now required to provide employees who are nursing mothers with private space and reasonable break time to express milk. The requirement is part of the larger health reform package signed into law two years ago. Here's how the wage and hour provisions work:
Who is entitled to break time?
The Patient Protection and Affordable Care Act provides that employees who work for employers covered by the Fair Labor Standards Act, and are not exempt from the law's overtime pay requirements, are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the FLSA requirements they may be obligated to provide such breaks under state laws. Twenty-four states, the District of Columbia and Puerto Rico have laws covering breastfeeding and expressing milk in the workplace. Those states are: Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming. The federal health care law does not preempt state requirements.
Does the break time have to be paid break time?
No. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA's general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.
Are all employers covered by the break time requirement?
No. The requirement applies to employers with SO or more employees. Those who can prove undue hardship qualify for an exemption.
For purpose of the undue hardship exemption, how will the Labor Department determine whether an employer has fewer than 50 employees?
All employees are counted. Consistent with the FLSA definition of employee, "any individual employed by an employer” must be counted, including full-time employees, part-time employees and any other individuals who meet the FLSA
definition of employee found at 29 U.S.C. 203(e)(l).
Do employers have to provide a lactation space even if they don't have any nursing mother employees?
The statute only requires that employers provide space each time a nursing employee needs to express milk. If there are no-nursing employees needing to express milk, there is no obligation to provide a space.
Source: Department of Labor Wage and Hour Division Fact Sheet #73; National Conference of State Legislatures