Workplace Breastfeeding Laws

Yes. The Patient Protection and Affordable Care Act (ACA) of the Fair Labor Standards Act (FLSA) is federal law mandating that employers provide “reasonable break time” for hourly employees who are new mothers to express breastmilk for her nursing child. The reasonable break time must be provided for up to one year after the child’s birth each time the mother needs to express milk.

The employer must also provide a space, other than a bathroom, for the nursing mother to express milk. The space must be private, which means the mother is both shielded from view and able to avoid interruption and intrusion from other employees and the public.

Employers are prohibited from retaliating against employees who file a complaint about their employer’s compliance with the workplace breastfeeding requirements outlined in the FLSA.

What Employers Must Follow the Workplace Breastfeeding Laws?

All employers covered by the Fair Labor Standards Act are required to follow the workplace breastfeeding laws. The FLSA covers employers with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce, as long as the business makes at least $500,000 annually in volume.

In addition to employers who meet the $500,000 threshold, the FLSA also covers the following regardless of their annual dollar volume of business:

• Hospitals or other institutions whose primary business is caring for the sick, elderly, mentally ill, or disabled people who reside on the premises;
• Schools for children who are mentally disabled, physically disabled, or gifted;
• Preschools, elementary schools, secondary schools, and schools of higher education; and
• Federal, state, and local government agencies.

Employers who are covered by the FLSA but have less than 50 employees AND can demonstrate that compliance would impose an undue hardship, are exempt from the reasonable break time requirement. Undue hardship means that complying with the reasonable break time requirement would be significantly difficult or expensive considering the size, structure, nature and financial resources of the business.

What is a “Reasonable Break Time?”

The law does not define “reasonable break time” as being any specific amount of time. Both the number of breaks and the duration of each break will vary. The employer must allow a reasonable amount of time that will allow a nursing mother to express her milk or breastfeed her child. Generally thirty minutes is considered sufficient, however the law recognizes that some may need more time.

Must the Employer Compensate the Employee During the Breaks?

Employers are not required to compensate employees who take reasonable breaks for expressing milk or breastfeeding. However, if the employer provides paid breaks, and the employee uses that time for breastfeeding, the employee must be compensated as any other employee is compensated for the break time.

How Many Breaks Can I Take?

The law recognizes that the number of breaks a nursing mother needs to take throughout the day will vary. According to the FLSA, a nursing mother can take breaks as frequently as necessary. The Department of Labor (DOL) estimates most nursing mothers take two to three breaks during a typical eight hour work day.

Where Can I Take My Break?

Employers must provide a space for the nursing mother that is private. That space cannot be a bathroom. The employer is not required to have a space dedicated to nursing mothers, but the space must be available for that purpose when it is needed. The space can be temporary, but must be completely private so that no one can see inside of the space.

Part of ensuring the space is private means signs indicating the space is being used, or the option to lock the door. Windows should be covered so that no one can see in from the outside.

How Do State Laws Protect Breastfeeding at Work?

Several states and the District of Columbia have enacted their own laws addressing breastfeeding at work. The requirements outlined in the FLSA are the minimum employers must provide. Some states have added additional protections and requirements.

For example, in California employers are required to provide access to a sink and refrigerator in close proximity to the employee’s workspace. Colorado extends the time a nursing mother should have reasonable breaks and a private space to two years after the baby’s birth. Washington D.C. law allows a nursing mother to take her breaks to breastfeed at a childcare facility if it is in close proximity to the mother’s work location. Minnesota specifies that the breastfeeding space must have an electrical outlet.

Should I Hire a Lawyer if my Employer Refuses to Allow me to Breastfeed at Work?

If your employer has refused to provide reasonable break time and a private space for nursing or breastfeeding, you should consult with an employment law attorney to discuss whether you have any legal remedies available. The Patient Protection and Affordable Care Act is current law and employers covered by the Fair Labor Standards Act are required to comply. An experienced attorney can help you determine if your employer should be providing you the necessary time and space to breastfeed.