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Client Alert from the Labor and Employment Group - July 2010

DOL Issues A Fact Sheet on Breaks for Nursing Mothers

by Nancy A. Noall and Michael Schmeltzer

Last April, we sent you an alert advising of a new federal law called the Patient Protection and Affordable Care Act ("PPACA") that includes a provision requiring employers covered by the Fair Labor Standards Act ("FLSA") to provide reasonable breaks for mothers to express breast milk. See "Client Alert - Breastfeeding Moms Given Federal Protection in the Workplace." The U.S. Department of Labor ("DOL") recently published Fact Sheet #73: Break Time for Nursing Mothers under the FLSA in order to address some questions not answered by the law itself. See http://www.dol.gov/whd/regs/compliance/whdfs73.htm. While the Fact Sheet doesn't provide as much guidance as hoped, it does address the time and location of breaks and coverage and compensation under the statute.

The Fact Sheet explains that each break must be "reasonable" and what is "reasonable" will likely vary in duration and frequency from employer to employer. It confirms that a bathroom is not a permissible break location. Rather, a functional space must be provided for the mother's use, although it need not be dedicated solely for that purpose so long as it is available to her when she needs it. According to the Fact Sheet, "A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public."

The Fact Sheet also confirms that employers are not required to compensate nursing mothers for these breaks, regardless of the breaks' duration (so long as the nursing mothers have been completely relieved of their employment duties). However, if a nursing mother wishes to utilize a compensated break that was already available to her and other employees for the purpose of expressing milk, the employer must compensate her the same way it compensates other employees.

Moreover, the Fact Sheet confirms that only mothers who are not exempt from the FLSA's overtime pay requirements are entitled to breaks to express milk, although State law may cover exempt mothers. Ohio does not currently have a state law on expressing milk. But we advise, as a matter of employee morale, that employers consider allowing exempt employees the same break opportunities as non-exempt employees for this purpose.

The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. The lawyers in Walter & Haverfield's Labor and Employment Law Group will be pleased to assist with any questions about this new law.