Wage and Hour Wants Comments on Nursing Mothers' Breaks

The health reform law added a break time requirement to the Fair Labor Standards Act, and the DOL unit is still working out final guidance for employers.

The U.S. Department of Labor's Wage and Hour Division has published a request seeking comments by Feb. 22 on what constitutes "reasonable break time" for an employee to express breast milk during the work day. The health reform law added a break time requirement to the Fair Labor Standards Act, effect March 23, 2010, and this request is part of the division's effort to supply final guidance for employers.

The requirement says 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 need to express the milk." Employers also must provide "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."

Wage and Hour provided Fact Sheet 73 in July 2010 that explains who is and isn't covered by this requirement. Establishments with fewer than 50 employees are not covered if compliance would pose an undue hardship, nor are employees who are exempt from FLFA overtime pay requirements unless state laws say otherwise, according to the fact sheet. The fact sheet says this about compensation: "Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, 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."

For now, the division doesn't plan to issue regulations to implement the requirements. Until final guidance is published, its enforcement will be based on the text of the requirements and the fact sheet.

To comment, visit www.regulations.gov and search RIN 1235-ZA00.

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