DOL Seeks Comments and Provides Preliminary Interpretations of Break Time and Space for Nursing Employees
By: Renisa A. Dorner
The Employers’ Association Bulletin, February 2011
Recently, the U.S. Department of Labor (DOL) announced that it was seeking comments with respect to the amendment to the Fair Labor Standards Act (FLSA) requiring employers to provide nursing mothers with reasonable break time and a private area to express breast milk while at work. The DOL also indicated that it was providing its preliminary interpretations of these new requirements. However, the DOL made clear that it did not plan to issue regulations at the present time because of the wide variety to factors that influence the length and frequency of break time as well as the location.
Reasonable Break Time
The DOL consulted with various “lactation experts” and determined that the frequency of breaks varies depending on factors such as the age of the baby, the number of daily feedings, whether the baby is eating solid food, etc. A nursing mother needs to express milk as frequently as the baby usually nurses. So, in the early months of life, the baby may need 8 to 12 feedings per day which is gradually reduced throughout the year. The DOL expects that nursing mothers typically will need two or three breaks per eight hour shift. And the length of the break will vary from woman to woman. Typically, the act of expressing breast milk alone takes 15 to 20 minutes. If this break time corresponds with the typical “paid” break time, then the employee would be entitled to be compensated like other employees. However, if the break time is other than the normal break time or is in excess of the normal break time, then such breach is deemed unpaid.
In assessing the reasonableness of break time provided to a nursing employee, the Department will consider all the steps reasonably necessary to express breast milk, not merely the time required to express the milk itself. These steps may include (1) time it takes to walk to the lactation space as well as any wait time to use the space, (2) time to retrieve pump and other supplies to take to the lactation space, (3) setting up individual pump versus one already provided, (4) efficiency of pump being used, (5) running water nearby to wash hands and clean pump, and (6) time needed to store the milk. Employer is not required to store the milk; rather employer merely has to provide the space for the employee to store the pump, supplies and personal cooler. The DOL appears to urge an interactive process between the employee and employer to determine the frequency and timing of breaks.
Employers 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.” Initially, the DOL interpreted this provision to require a separate room for this specific purpose. Where it is not practicable for an employer to provide a specific room, then compliance can be met by creating a space with partitions or curtains. In its guidance, it appears that the DOL will evaluate the space to see if it ensures the employee”s privacy from intrusion such as signs showing the space is in use or a lock on the door.
In order to be a functional space “that may be used by an employee to express breast milk,” at a minimum, the space must contain a place for the nursing mother to sit, and a flat surface, other than the floor, on which to place the pump. Ideally, the space will have access to electricity, so that a nursing mother can plug in an electric pump rather than using a pump with battery power.
An employer will not be considered to be in compliance if the designated space is so far from the employee’s work area as to make it impractical for the employee to take breaks to express milk, or where the number of nursing employees needing to use the space either prevents an employee from taking breaks or results in prolonged waiting time, which equates to unpaid time.
The DOL recognizes that some workplaces create unique challenges to providing a space for this purpose. Delivery drivers, law enforcement officers and emergency medical technicians who do not have a fixed place of employment have required employers to become creative. In situations where the employee is at a client”s office, the Department recommends that the employer arrange with the client to allow the employee to use a space at the client”s site for the purpose of expressing milk. It may be that the client”s worksite already has a designated space for expressing milk for its own employees that can be used by the contract employee. Repeatedly, the DOL encourages an open dialog between employee and employer when discussing the frequency of the breaks and the space being utilized.
According to the DOL, unpaid breaks for expressing breast milk should not be counted against an employee”s FMLA leave entitlement. While employees are entitled to take FMLA leave to bond with a newborn child, the Department does not consider expressing milk at work to constitute bonding with or caring for a newborn child.