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Employment Protections for New Mothers: Mandated Reasonable Break Times for New Mothers For Nursing Under the Fair Labor Standards Act

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgThe Patient Protection and Affordable Care Act (the “Act”) requires employers to provide nursing mothers with unpaid break times during the work day to express breast milk. The Act amends the Fair Labor Standards Act – “Reasonable Break Time for Nursing Mothers” states that applicable employers must provide a reasonable break time for an employee to express breast milk for her nursing child for up to one year after the child’s birth every time such employee has need to express the milk. This law went to effect immediately and DOL regulations are expected to be promulgated shortly.

Upon the employee’s request, the employer must provide an employee with a private space (other than a bathroom) where the employee can express breast milk. The private space can be a conference room or an empty office provided such rooms have locks, electric outlets and are close to the employee’s workstation and a bathroom. Employers are not required to build new areas and the private space can be used by more than one nursing mother at separate times.

Unfortunately, the law is silent as to what is a “reasonable break time” and how many breaks an eligible employee can take during a day. In the days ahead as the law is used by new mothers, the law will be interpreted. Conservatively, it is possible that employers may be required to provide nursing mothers with twenty to thirty minute breaks once or twice a work shift.

The Act covers all employers who are subject to the FLSA. The only exception is for employers of less than fifty employees who can show that complying with the requirement would cause an “undue hardship.” The term “undue hardship” is similar to the key employee concept under the Family Medical Leave Act. In reviewing whether an undue hardship exists, courts may inquire into the nature of the employer’s business, finances, and structural layout of the business. Since the breaks are unpaid and do not appear to be limited per day, it may be difficult for employers to meet the “undue hardship” standard.

Although this is the first federal law to require breaks for nursing mothers during the work day, employees should be cognizant that some states provide similar protections. For example, New York and Connecticut already have similar state laws. In Connecticut, employers are required to provide a reasonable amount of time each day to an employee who needs to express breast milk for her infant child and to provide accommodations where an employee can express her milk in private. See Conn. Gen. Stat. Section 31-40w. In New York, employers are required to allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so. The New York Labor Law also prohibits discrimination against breastfeeding mothers in the workplace. See New York’s Nursing Mothers in the Workplace Act, New York Labor Law Section 206-c.

In fact, the New York Civil Liberties Union recently filed a charge of discrimination with the EEOC on behalf of a female employee, Yadiris Rivera, who alleged she was discharged from her job after she choose to express breast milk at the workplace. According to the EEOC charge, when Ms. Rivera requested a private space to express breast milk, her employer told her to use the office’s restroom and told her that she should not be pumping at work. Her employer also allegedly told her to stop pumping breast milk and to use formula. Ms. Rivera was then targeted for discipline and fired the day after her daughter’s first birthday. The charge alleges the employer violated New York State Labor Law.

If you have any questions or concerns about your rights in the workplace including your rights under the Act or State Labor Law, call today to speak with one of our experienced New York workplace lawyers to discuss your specific situation at (800) 893-9645.

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