The U.S. Department of Labor (DOL) released a fact sheet earlier this month to provide general information on the federal break time requirement for nursing mothers, which took effect on March 23, 2010, when the Patient Protection and Affordable Care Act (better known as the Heath Care Reform Act) was signed into law.

General Requirements

The fact sheets sets out the basic information related to the amendment made to Section 7 of the Fair Labor Standards Act (FLSA), which requires employers to provide: (1) a 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; and (2) 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.

The fact sheet reiterates that this new FLSA requirement does not pre-empt a state law that provides greater protections to employees, such as a state law that provides compensated break time, break time for exempt employees, or break time beyond one year after the child's birth.

Time and Location of Breaks

The DOL guidance states that employers are required to provide a reasonable amount of break time as frequently as needed by nursing mothers to express milk, noting that the frequency and duration of breaks will likely vary.

The guidance also states that the location, which cannot be a bathroom, must be functional as a space for expressing milk, but does not need to be a dedicated space for nursing mothers' use. The space, however, must be available when needed by nursing mothers to meet the statutory requirement. Additionally, a space temporarily created or converted into a space for expressing milk, or made available when needed by a nursing mother, is sufficient to meet the statutory requirements as long as the space is shielded from view and free from intrusion from coworkers and the public.

Coverage and Compensation

The fact sheet affirms that only employees who are not exempt from the FLSA's overtime pay requirements are entitled to these breaks, but reiterates that if state law requires employers to provide such breaks for exempt employees, employers are obligated to do so.

Employers with less than 50 employees may be exempt from this federal requirement (all employees of employer, regardless of work site, must be counted when determining whether this exemption may apply) if it would impose an undue hardship. According to the fact sheet, whether compliance with this requirement would impose 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.

An employer need not compensate an employee for breaks taken for the purpose of expressing milk. DOL guidance notes, however, that 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. A final note by the DOL emphasizes the FLSA's general requirement that an employee must be completely relieved from duty or else the time is considered work time and must be paid.