From: Staffing

The federal Fair Labor Standards Act (FLSA) does not require employers to provide lunch or coffee breaks to employees. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), the FLSA considers the breaks as compensable work hours that would be included in the sum of hours worked during the workweek and considered in determining if overtime was worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.

Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable.

Review the federal rules regarding meal and break periods at 29 C.F.R. §§ 785.18 and 785.19.

Breastfeeding

Effective March 23, 2010, the Patient Protection and Affordable Care Act amended the FLSA to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk.

General Requirements

Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “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 by an employee to express breast milk.”

The FLSA requirement of break time for nursing mothers to express breast milk does not preempt state laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond one year after the child’s birth).

Time and Location of Breaks

Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.

A bathroom, even if private, is not a permissible location. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Coverage and Compensation

Only employees who are not exempt from § 7 (Maximum Hours), which includes the FLSA’s overtime pay requirements, are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the requirements of § 7, they may be obligated to provide such breaks under state laws.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

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. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.

Interaction with State Laws

Some states have passed legislation that explicitly allows mothers to breastfeed in public or semipublic places such as restaurants, public transportation facilities, and other locations where the public is present. Other states have passed laws that require employers to provide reasonable time for an employee to breastfeed or express breast milk, or to coordinate designated break times to coincide with the employee’s need to breastfeed or express breast milk. There are several states that have adopted both types of laws.

Note: The FLSA’s provisions do not pre-empt a state law that provides greater protections to employees.

Drafting a Breastfeeding Policy

In order to accommodate an employee’s right to breastfeed, covered employers should draft a written policy on breastfeeding and expressing breast milk in the workplace. This policy should include:

• Flexible work schedules to provide time for expression of milk.
• Provision of an accessible location allowing privacy (shielded from view and free from intrusion from co-workers and the public).
• Access to a nearby clean and safe water source and a sink for washing hands and rinsing out any breast-pump equipment.
• Access to hygienic/refrigerated storage alternatives for the mother to store her breast milk.
• It is generally accepted that bathrooms are not sanitary, acceptable places for breastfeeding or expressing breast milk.  Therefore, federal law requires that employers must not designate employee or public bathrooms as the location for breastfeeding or expressing breast milk