When the Affordable Care Act was passed, a provision of ACA amended the Fair Labor Standards Act (FLSA) to require employers to give break times for nursing mothers. Employers with fewer than 50 employees may not be subject to the break time requirements if complying would impose an undue hardship. Hardship is determined by looking at the difficulty and expense of compliance relative to the structure of the employer’s business.
Employers must 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 a need to express the milk.” There are no set timeframes and the frequency of breaks will vary from person to person.
In addition to providing breaks to express milk, employers must also provide a place for expressing (other than a bathroom) that is shielded from view and free from intrusions.
Employers are not required under the FLSA to compensate nursing mothers for breaks taken to express breast milk. However, if an employer already provides paid break times, an employee who uses a break for expressing must be compensated in the same way that other employees are compensated for break time.
The requirement to provide breaks for nursing mothers applies both to in-person work and virtual work. With many nursing mothers working remotely during the COVID-19 pandemic, employers should remember to provide breaks during the work day for nursing mothers to express breast milk consistent with the FLSA.
Click here for the U.S. Department of Labor’s Frequently Asked Questions about break times for nursing mothers.