The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time… each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a bathroom, for purposes of the break.

The FLSA requirement for reasonable break time applies only to non-exempt employees.  However, employers should consider that refusal to provide reasonable break time to exempt workers for expressing milk might be difficult to explain from an employee relations standpoint.  Also, as noted below, there might be state or local laws that require break time for all nursing moms.

Employers are not required to provide paid breaks to nursing moms.  However, if a company does provide paid breaks, then nursing moms must be permitted to use the paid break for expressing milk.  Also, consistent with the general rules under the FLSA, in order for break time used to express milk to be unpaid, the employee must be completely relieved from work duties during the break.
Employers with less than fifty (50) employees are exempt if they can show that providing the breaks will cause an "undue hardship," measured by the cost and difficulty of compliance, the nature of the business, and the company’s finances.

This change in the federal FLSA does not preempt any state or local laws governing time off for nursing moms.  Employers should be aware of state and local laws that might require paid time for this purpose or include other protections not included in the FLSA amendments.  Ohio does not have any state law dictating break time for nursing moms.  The Ohio Supreme Court had an opportunity in Allen v. Totes/Isotoner decided in 2009 to consider whether a refusal to provide break time to express milk violates Ohio’s sex discrimination law.  But, the Court avoided the issue, dismissing the employee’s case because she had not explicitly told her employer that she needed the breaks for nursing.