WHD Issues Interpretations on Provisions for Nursing Mothers

The Labor Department's Wage & Hour Division is seeking information from the public regarding its “preliminary interpretations” of a recent amendment to the Fair Labor Standards Act requiring employers to provide “reasonable break time” and a place for nursing mothers to express breast milk for their infants, according to a notice published in the Dec. 21 Federal Register (75 Fed. Reg. 80,073).

The FLSA amendment was included within Section 4207 of the Patient Protection and Affordable Care Act, which President Obama signed into law last March (61 BTM 116, 4/13/10).

WHD is seeking comment on various issues arising from the amendment, including compensability of break time for nursing mothers, determining reasonableness of break times and adequate spaces, and the undue hardship exemption for small employers. The notice also discusses agency enforcement of the requirements as well as the provisions' relationship with the Family and Medical Leave Act.

WHD said it does not plan to issue regulations implementing the nursing mother provisions “at this time” because it does not believe doing so would be “the most useful or effective means for providing initial guidance to employers and employees” given the “wide variety of workplace environments, work schedules, and individual factors that will impact the number and length of breaks required by a nursing mother.”

The agency added, however, that it may initiate rulemaking in the future if it determines that regulations are necessary.

Comments may be submitted to Montaniel Navarro, DOL, 200 Constitution Ave. N.W., Room S-3502, Washington, D.C. 20210, or via the Federal eRulemaking Portal at http://www.regulations.gov. Comments will be accepted until 60 days after the date of the notice's publication in the Federal Register.

Coverage Under Nursing Mother Provisions

Since PPACA amended Section 7 of the FLSA (29 U.S.C. § 207), which establishes overtime compensation requirements for employers, the nursing mother provisions apply only to employees covered by the FLSA's overtime protections, according to WHD.

Thus, in order for a nursing employee to be entitled to break time and space to express breast milk, WHD said, she must work for an “enterprise” with at least two employees that either has an “an annual dollar volume of sales or business done of at least $500,000” or is a hospital, a business providing medical or nursing care, an educational institution, or “an activity of a public agency.”

In the absence of enterprise coverage, WHD said, an employee will be covered by the nursing mother provisions if she is “engaged in commerce or in the production of goods for commerce” and not exempt from the FLSA's overtime pay provisions.

WHD said it encourages employers to provide all nursing mothers with break times and space for expressing milk regardless of whether they are covered under the FLSA overtime provisions.

Compensation for Break Time

Under 29 U.S.C. § 207(r)(1)(A), employers must provide a nursing employee with “reasonable break time” to express breast milk “each time” she has need to do so for a period of one year after her child's birth. The law also provides that an employer is not required to compensate an employee for such breaks.

WHD said that if an employer already provides paid breaks to employees, however, a nursing mother who uses that allotted time to express milk “must be paid in the same way that other employees are compensated for break time.”

Although employers are not required to do so, WHD encouraged companies to provide flexible schedules for nursing mothers to make up unpaid break time for expressing breast milk.

In determining the reasonableness of such break time, WHD said employers should “consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk.”

WHD said it expects nursing mothers “typically will need breaks to express milk two to three times during an eight-hour shift,” with the expressing taking approximately 15 to 20 minutes.

Other factors employers should consider include the time it takes a nursing employee to reach the lactation space; the time it takes for her to retrieve a breast pump or other supplies and to set them up; the efficiency of the pump; the availability of a nearby sink for cleaning; and the time it takes to store the milk.

WHD encouraged nursing employees to give employers advance notice of their intent to take breaks to express milk. Given that employers must provide such breaks “each time” nursing employees need to express milk, the agency said it seeks comments on addressing the issue of employee notice.

The agency added that it is permissible for an employer to ask an expectant mother if she intends to take breaks to express milk, as this provides an opportunity for an employee to be informed of her rights and for an employer to comply with the law.

Place for Expressing Milk

Under 29 U.S.C. § 207(r)(1)(B), an employer must provide a nursing employee with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used … to express breast milk.”

Acknowledging that it is not practicable for every employer to provide private rooms, WHD said a company may satisfy this requirement by providing a space with partitions or curtains, and covering any windows. To ensure employee privacy during use of the lactation space, the agency said employers may use signs to indicate occupation or provide a lock on the door.

The agency said it seeks comments on arrangements that would allow nursing employees to utilize spaces normally reserved for other purposes, such as “manager's offices, storage spaces, [and] utility closets.” While the statute specifically excludes the use of bathrooms, the agency said it seeks comments on the use of rooms that adjoin bathrooms, such as anterooms or lounge areas, as spaces to express breast milk.

WHD said it also seeks comments on how employers can comply with the nursing provisions in regard to employees not working in a fixed location or working at a client worksite.

Exemption, FMLA, Enforcement

Under 29 U.S.C. § 207(r)(3), employers with fewer than 50 employees are exempt from the nursing mother provisions if compliance would impose an undue hardship on the company. Noting that employers must count all employees at all work sites to determine whether they meet the exemption's 50-employee threshold, WHD said it invites comments on “the appropriate point at which to count the number of employees.”

Discussing the relationship between the nursing mother provisions and the FMLA, WHD said it “does not believe breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee's FMLA entitlement.”

Regarding enforcement, WHD said employees may file complaints with the agency if they believe their employer is not complying with the nursing mother provisions. The agency said it may seek injunctive relief in federal district court. If an employer fires a nursing mother for taking or attempting to take breaks to express breast milk, WHD said, the agency may also seek reinstatement and lost wages for the terminated employee.

By Jay-Anne B. Casuga

Text of the WHD interpretation and request for information are at http://op.bna.com/dlrcases.nsf/r?Open=jaca-8cbnrj.