New Break Time Requirement for Nursing Mothers

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The United States Department of Labor’s Wage and Hour Division recently released a Fact Sheet providing guidance on the new break time requirement for nursing mothers. This new requirement took effect when Section 7 of the Fair Labor Standards Act (“FLSA”) was amended by the Patient Protection and Affordable Care Act on March 23, 2010. The Fact Sheet explains that employers with 50 or more employees 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.” In addition, employers must supply a functional space, aside from a bathroom, for mothers to express breast milk. If an employer does not have a dedicated space, it must create a temporary or converted space that is shielded from view and free from intrusion from co-workers and the public. Although the new law only applies to employees who are nonexempt from the FLSA’s overtime provisions, employers should be aware that they may be required to provide such breaks to exempt workers under state or local laws. Generally, employers are not required to compensate nursing mothers for such breaks under the FLSA. However, if an employer already provides compensated breaks, an employee who uses her break time to express milk must be compensated in the same manner as other employees on break.

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