Friday, March 28, 2014

What you need to know about the “Break Time for Nursing Mothers” law

Last week, ACLU Nationwide sent a letter to a Colorado employer, documenting multiple violations of the federal “Break Time for Nursing Mothers” law and the state’s “Workplace Accommodations for Nursing Mother’s Act.”

In the letter of complaint, ACLU said that DISH Network failed to accommodate nursing mothers at the company’s corporate headquarters in Englewood, where employees are forced to pump breast milk in front of their co-workers and supervisors, without privacy screens or curtains, and at a DISH Network call center in Littleton, where the lactation room is located inside a bathroom in direct violation of federal and state law.

According to the ACLU’s complaint, the lactation room in one of the buildings at the DISH Network headquarters was so small and crowded that women were forced to pump while sitting on the floor.

While calling on DISH Network to provide adequate space and privacy in all of its lactation rooms so that multiple nursing employees can pump privately at the same time, ACLU sent a clear message to all the employers in the country: it is the employer’s sole responsibility to accommodations the law requires and honor the rights of nursing mothers.

The Workplace Accommodations for Nursing Mother’s Act, passed by the Colorado legislature in 2008, as well as the federal Fair Labor Standards Act as amended by the Affordable Care Act in 2010, require employers to provide sufficient private spaces other than a bathroom, for nursing employees to express breast milk, shielded from the view of all other co-workers and the public.

Many states have the similar law to protect nursing mothers. Here in California, Labor Code requires the employer to make reasonable efforts to provide the nursing employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

Federal Law also support nursing mothers at work place. Effective March 23, 2010, federal “Break Time for Nursing Mothers” law requires employers to provide break time and a place for hourly paid workers to express breast milk at work. The law states that employers must provide a “reasonable” amount of time and that they must provide a private space other than a bathroom. They are required to provide this until the employee’s baby turns one year old.

This law is part of Section 4207 of the Patient Protection and Affordable Care Act under the Fair Labor Standards Act (FLSA) of 2011.

If you are a nursing mother or a employer with nursing employees, there are several things about the law that you might want to know.



Who is covered by the law?
The law applies to nonexempt employees covered by the Fair Labor Standards Act (FLSA). Only employees who are not exempt from section 7, 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 Section 7, they may be obligated to provide such breaks under state laws.

Are the breaks paid?
The law does not require pumping breaks to be paid. However, if your employer already offers paid breaks and you use those breaks to pump your milk, your time should be paid.

What if the state already has a law?
When both the federal and state governments address the same situation, the stronger law applies.

Who is in charge of enforcing the law?
The Department of Labor Wage and Hour Division (WHD) is in charge of enforcing the law.

What are the benefits to employers?
Many employers do not realize that breastfeeding can save money. Employer benefits for supporting breastfeeding employees include:

  • Breastfeeding employees miss work less often because breastfed infants are healthier.
  • Breastfeeding lower health care costs. 
  • Breastfeeding support helps employers keep their best employees so that less money is spent hiring and training new employees. 
  • Breastfeeding employees who are supported in the workplace report higher productivity and loyalty. 
  • Supporting breastfeeding employees creates a positive public image.

What does the undue hardship exemption mean for employees?
To apply for a undue hardship exemption the employer must prove that providing thee accommodations would cause “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Even if you work for a small business, you have the right to break time and a private space to express milk for your baby while you are at work. Even if your employer has few than 50 employees, they must comply unless the federal government has issued them an exemption.

What are the space requirements?
The law requires employers to provide a place that completely private so that no one can see inside the space. A bathroom is not a permissible location under the act.

How much time is “reasonable?”
Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child.” The law recognizes that the amount of time it takes to express breast milk is different for every mother. According to the Business Case for Breastfeeding, it usually takes around 15 minutes to pump breast milk.

How often can you pump during the workday?
The law requires employers to provide time and space “each time such employee has need to express the milk.” The law recognizes that the frequency of breaks needed to express milk of each mother will like vary.

How long do you have the right to pump at work?
Employers are required to provide these break "one year after the child’s birth." Some states, like Colorado, guarantee break time for longer.

What are some creative solutions for space?
You may consider:

  • Unused areas like a storage closet, empty office, or meeting room. 
  • Manager’s office. Area that can be partitioned or blocked by a curtain. 
  • Company vehicle with window coverings. 
  • Pop-up tents or temporary walls in the office. 
  • Work from home, if possible.

What if your employer refuses to comply?
If your employer refuses to comply with the law, you can file a complaint by calling the toll-free WHD number 1-800-487-9243. For more information on filling a complaint against your employer, visit the website.

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