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WAGE AND HOUR LAW: DOL offers 'preliminary guidance' on breaks for nursing mothers


When President Barack Obama signed it into law on March 23, 2010, the Patient Protection and Affordable Care Act guaranteed covered nursing mothers a reasonable amount of break time and a secure and private location when they need to express breast milk. The new rule raised several questions for employers, however, particularly those that don’t have sufficient resources to create a “secure and private location” without significant difficulty or expense.

Recently, the U.S. Department of Labor (DOL) issued a request for information (RFI) from the public regarding the rule and provided preliminary interpretations of the rule’s requirements. Although the guidance provided in the RFI is not binding law, it illustrates the approach courts and the DOL will likely follow when applying the rule. Thus, it provides helpful guidance on the following frequently asked questions.

What constitutes a ‘secure and private’ location?

The rule provides that the location made available to the nursing mother must be "shielded from view and free from intrusion from coworkers and the public." The location cannot be a bathroom. This requirement initially appeared problematic to many employers, since many don’t have additional available space or a location that is completely secure from public intrusion. If that’s the case for your company, you should find the DOL’s insights useful.

The DOL opined that when it isn’t practicable to make an entire room available, you can simply create a space with partitions or curtains. While it is preferable that the available space be secured by a lock or a door that latches, the agency states that isn’t a strict requirement. If you aren’t able to secure a location with a lock or latching door, you may be able to satisfy the rule by posting a sign designating the space as “private” and taking steps to ensure that the location is not disturbed.

The DOL noted that locker rooms that also function as changing rooms may be adequate, provided you set aside a separate private space that isn’t located in a toilet or shower area. Finally, the location you make available should meet certain minimum requirements. Specifically, it should include a place for the nursing mother to sit and a flat surface other than the floor on which to place any necessary equipment. Ideally, the location also should contain an electrical outlet for any required pumping equipment.

How much break time is 'reasonable'?

According to the DOL, nursing mothers may need to express breast milk as frequently as eight to 12 times per day, especially during the early months of an infant’s life. The agency emphasized that serious health problems can occur if a nursing mother is not permitted to express breast milk as often as needed. Consequently, you can expect a new mother to require two to three 15- to 30-minute breaks per eight-hour shift (depending on the distance of the “secure and private location” from her workstation). The frequency of the breaks should decrease as the child ages. Remember that a mother is no longer covered by the rule after her child’s first birthday.

Is my company exempt?

Employers with fewer than 50 employees may be exempt if complying with the rule would impose an “undue hardship” by causing significant difficulty or expense. The 50-employee threshold applies to all of your employees, including those working at other work sites. The DOL didn’t expressly illustrate what types of situations warrant an exemption, although it strongly implied that it will be difficult to obtain an exemption. The agency noted that the exemption is a “stringent standard” available only in “limited circumstances.”

If you believe you are exempt from the rule, it’s prudent (but not necessary) to take action immediately. The DOL opined that the exemption may be used as an “affirmative defense”; in other words, you may raise the exemption as a defense to litigation, and you aren’t required to obtain preapproval from the DOL or any other entity. Nevertheless, it’s highly recommended that if you believe complying with the rule will create an “undue hardship,” you should immediately begin documenting your attempts to comply and the resulting hardships. Your documentation will be valuable evidence in the event of litigation.

Are all ‘nursing mothers’ at my company eligible for break time?

The DOL confirmed that the “reasonable break time” rule doesn’t apply to employees who are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirements. As a result, you aren’t required to provide break time to nursing mothers in executive, professional, and administrative positions (as defined by the FLSA) who are paid more than $23,600 per year on a salary basis.

Are ‘nursing mothers’ still entitled to FMLA leave?

Although new mothers also may be entitled to leave under the Family and Medical Leave Act (FMLA), the DOL reiterated that “reasonable break time” does not replace FMLA leave. Accordingly, new mothers may seek to avail themselves of the benefits of both statutes.

Bottom line

In the RFI, the DOL indicated that it didn’t intend to issue mandatory regulations on the “reasonable break time” rule anytime soon. Thus, the RFI and the text of the rule may constitute all the guidance employers receive in the near future. If you have difficulty complying with the “reasonable break time” rule, you should make your best effort to provide covered nursing mothers with a secure and private location, and document any hardships that occur. If you have additional questions about the rule, your employment counsel can help you achieve compliance in a manner that best uses your company’s resources. ✤

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2011 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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