The U.S. Department of Labor has released industry-specific guidance on expanded protections for nursing employees under federal law.
The details
Background
Effective Dec. 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act amended Fair Labor Standards Act (FLSA) to entitle more employees to reasonable break time to express breast milk for their nursing child.
As a result, employers must provide reasonable break time to both exempt and nonexempt employees, so they can express breast milk for their nursing child for one year after the child's birth. The employee is entitled to reasonable break time each time they have a 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 break time may be unpaid unless otherwise required to be paid by federal, state or municipal law, provided the employee is completely relieved from duty during the entirety of the break.
Note: With limited exceptions, federal law requires employers to pay exempt employees their full salary in any workweek in which they perform any work, regardless of the quantity or quality of the work. As such, deductions from any exempt employees’ salary for such breaks are prohibited.
As was the case prior to the amendment, employers with fewer than 50 employees are exempt from the requirements if the requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Crewmembers of air carriers are also exempt from the law. There are also special rules for rail carriers.
Industry-Specific Guidance
The U.S. Department of Labor has begun releasing industry-specific guidance on the expanded law, covering the agriculture, retail and restaurant, healthcare, education, and transportation industries. The guidance consists of a prerecorded presentation and answers to frequently asked questions (FAQs).
For example, the FAQs for the retail and restaurant industries include answers to the following inquiries.
- Can employers require employees to make up time that nursing employees spend on pump breaks to meet productivity measures?
No. Employers cannot hold the time that employees take for pump breaks against them when determining whether they met a productivity measure or quota. Employees also cannot be required to make up the time they took for pump breaks. An employer adding work time to an employee’s normal schedule could be considered prohibited retaliation under the FLSA.
- I work for a fast-food restaurant that has locations in many different states. If my employer follows federal law, do they also have to follow different state laws that require accommodations for nursing employees?
Yes. Many states have laws related to pumping milk at work. Employees may have greater protections under such state or local laws or ordinances. The FLSA provides that the reasonable break time and space requirements do not preclude greater employee protections provided under these laws.
For example, some states may require that all breaks for pumping be paid or may require that breaks be made available for more than one year. Employers must follow all the laws that apply to them.
- I work in a bookstore that has three bathrooms. One of the bathrooms is designated as a family bathroom. It has one stall and a changing table. My supervisor put an out of order sign on the stall door and placed a chair in the family bathroom for me to take pump breaks. Can I be required to use the bathroom to pump breast milk if it is not being used as a bathroom?
No. The FLSA requires that nursing employees have access to a place to pump breast milk at work that is not a bathroom. Using a bathroom to pump breast milk raises health and safety concerns, which may include the risk of contracting bacteria in breast milk or breast pump equipment.
See the full list of industry-specific guidance.
Next steps
Employers in the covered industries should review the guidance and ensure their practices and policies comply.