The Law @ Work

Nursing Mothers in the Workplace: What are Employers’ Obligations?

by Amelia J. Holstrom

Since it was signed in March 2010, the Affordable Care Act has received a lot of publicity.   Some parts of the Act took effect immediately, while others were on a tiered schedule.  While employers focused on the upcoming annual filing and the employer shared responsibility provisions of the Act, some may have missed that as of its signing, employers needed to provide “reasonable break time” for nursing mothers for one year after her child’s birth each time the employee has need to express milk.  As a nursing mother myself, I regularly find myself advising my clients of their obligations and, at times, throwing in some practical considerations based on my own experience.

You may be asking “what is a reasonable break time?”  The DOL has stated that the frequency of the needed breaks and the duration of those breaks will likely vary.  Many lactation consultants recommend that women returning to work express breast milk every 2 to 3 hours, for 10 minutes each time, but sometimes, depending on the needs of the child, a mother may need to take more frequent breaks, or breaks for longer periods of time.  When it comes to expressing breastmilk, the age of the child makes a significant difference as well, which means that an employee’s schedule may not always be the same during the first year after birth.

Under the Act, in addition to providing reasonable break times, employers must provide a place that is protected from view and free from intrusion of co-workers.  The Department of Labor has indicated that employers must place signs on the designated area or have a lock on the door.    Importantly, the private place cannot be a restroom.  If the employer cannot have a designated space for a nursing mother’s use, it must make a space available when needed.

Employers with 50 or more employees must provide the break time for nursing mothers.  Employers with less than 50 employees are not subject to the break time requirement only if compliance with the provision would impose an undue hardship.   To determine if compliance would be an undue hardship, the employer will have to look at the difficulty or expense of compliance in comparison to its size, financial resources, nature, and structure of the business.   Employers must count all employees of the employer, regardless of work site, when determining if it has 50 or more employees.

Employers may request from a breastfeeding mother an anticipated schedule and length of time for expressing breastmilk. This will enable the employer to find coverage if needed for the employee.  It is important for employers to remember that it is often difficult for a mother to leave her baby when returning to work.  As a result, covered employers should have a policy and practice regarding whom to contact and what to do if the mother wishes to express breastmilk upon her return to work.  It may help to ease an emotional transition for the mother.

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